To answer this question, we should first discuss why many mediations fail. Mediation fails for a variety of reasons. Often there is a power imbalance. In this type of mediation, one party gets whatever they want while the second party shuts down or capitulates. In other mediations, parties agree to settlements that either the judge won’t approve or the parties don’t truly understand because they don’t know the law. Finally, mediation won’t work when parties are yelling at each other. If you couldn’t agree on anything prior to mediation, how will agree to anything IN mediation?
Mediation at ABQ Facilitation avoids all of those pitfalls. First, your mediator will be mindful of power imbalances. Your mediator won’t allow one party to talk over the other party or bully the other party. If your mediator sees one party starting to shut down, your mediator will separate the parties, allowing one party to regroup and speak more openly outside the presence of the other party. Your mediator will also send both of you materials prior to the mediation, allowing you both the same opportunity to prepare, and therefore, to start off on equal footing. The mediator will allow both parties to present proposals, assuring both sides are equally heard throughout the mediation process.
In your mediation, the mediator will explain custody and divorce law to you, ensuring you won’t make mistakes in your documents. Making mistakes in your documents can have lifelong consequences for you and your children. In your mediation, you will learn what joint custody is, what differentiates community property from separate property and what grounds may entitle one to spousal support. Your mediator will explain the documents to you and draft the documents for you. Additionally, the mediator will educate you as to what the judge may do in your particular situation. You will leave mediation feeling empowered, but also confident in your agreement.
Finally, mediation works when the mediator brings a calming presence. Your mediator should be able to calm down rhetoric and negative emotions that occur during divorce mediation by redirecting the conversation or occasionally separating the parties to help recenter the parties around the issues and the law, rather than the negative emotions and past hurts. Your mediator shouldn’t shut down all discussions about the hurts or the past, but shouldn’t let those discussions take over and be the focus of the mediation. Your mediator is trained to manage all of the emotions that come with a divorce.
Another reason that mediation works, is that in mediation, you can control the outcome of your case. If you decide to litigate your case, you involve attorneys and a judge, automatically ceding control of your case to others. The more you fight, the less control you retain. The judge makes decisions for you, custody evaluators make decisions for you, guardians ad litem make decisions for you. The ONLY way to maintain full control over your assets, your finances and your children is to avoid litigation and mediate your differences.