Understanding and Preparing for Separation Mediation

Separation Mediation

When parties are considering using mediation to help them separate effectively, they may wonder how to prepare for separation mediation effectively.  For some, they may not even know what mediation entail, and they will have no idea how mediation will work for them.  Mediation is a commonly used practice, especially in family law matters, yet if people have no exposure to the process, they will often feel overwhelmed and unprepared when they encounter it in some way, either as a participant or when considering it.  Because no one should have to approach mediation without a thorough understanding of the process, this article will walk readers through the idea of using mediation as a way to reach a separation agreement and identify some key considerations to make when preparing for separation mediation, including the difference between divorce and separation, a discussion on using mediation for separation, an overview of the mediation process and the costs it entails.  The goal is that by the end of reading this article, you would be prepared to attend separation mediation and feel confident in what is happening.  

Divorce v. Separation: 

Separation is often used in conjunction with a divorce, which is reasonable given the two generally accomplish a similar goal—separating the lives of a married couple so that they may live independently.  Both systems will require that the parties file in court to make the process legal.  These processes include considerations like child custody and support, spousal support, and division of the property owned by the couple.  They allow the parties to begin their lives separately from each other and move forward.  However, there are a few distinctions that are important to consider when deciding whether to get a divorce or to legally separate.  These considerations include: 

  • Second marriage: When couples are legally separated, they cannot get married to other people because they are still legally married.  Divorced parties are legally single, so they may get married again.  
  • Healthcare: Legal separation can leave room for one party to receive medical insurance through their spouse.  In a legal separation, this is not usually the case.  
  • Status: Because a separated couple is still legally married, their status will not change. A divorced person’s status will not change from married to single legally for six months after the petition is filed.  
  • Reconciliation: Some legally separated couples are hoping to reconcile, which is why the parties have chosen to remain married, though separated.  Divorced couples would need to get remarried to gain the same status as they had before their divorce.  
  • Taxes: In a legal separation, the parties will still be filing married, although separately. Divorced parties will file as single taxpayers.  
  • Unmarried Couples: When unmarried couples or domestic partners break up, they cannot get divorced because they were not legally married.  However, they can go through the separation process if they need to make decisions about their status and situation.  

While separation and divorce overlap in many ways, there are certain aspects of each process that may make one choice the better decision over the other.  The perks of separation over divorce make it a valuable option, and mediation can be a great way to accomplish the goal.  

Using Separation Mediation: 

When couples are beginning the separation process, they may not consider the mediation process.  It may be the cost of a mediator, or they may believe that they can resolve the issues on their own.  However, mediation can be a helpful process to get the parties across the finish line and ensure that they have no more decisions to make.  It can also help couples that need some assistance in negotiating with one another reach an agreement that they would not otherwise reach.  Some couples may not even be aware that mediation is a possibility for separation and may miss the opportunity to use the process to their advantage. However, the process of using a third-party neutral to help guide the parties through negotiations and toward a separation agreement can be one of the best processes to resolve a separation dispute.  

If considering using mediation to legally separate, there are several benefits that mediation presents in the process, as well as some drawbacks.  The benefits include: 

  • Confidential: A large reason many parties use mediation is that they want to keep their private lives out of the public eye.  Going through the courts can mean that much of their private lives will be contained in documents and on record that are accessible to the public.  Mediation allows the parties to keep the discussion confidential.  
  • Voluntary: The process of mediation is voluntary, meaning that both parties need to agree to participate for the parties to begin mediation.  This also means that if one of the parties does not want to participate, the other party cannot make them, which can protect the interests of both of the parties.  
  • Moldable: Many other separation processes will feel very strict and formal.  Mediation allows the parties to shape the process and gives the parties the ability to decide how it will run.  
  • Non-Binding: Mediation is non-binding, meaning that there is not a guaranteed result at the end of the process that the parties will have to follow.  The parties have the choice of reaching an agreement and making it be the final agreement to separate them or moving on to different methods.  

The difficulties with mediation include: 

  • No Guarantee: Because the process of mediation is non-binding, that means that the mediation process may not resolve the dispute and the parties will need to use others mechanisms to finalize their separation.  
  • Lack of Structure: Because mediation is so party-driven, people may feel overwhelmed by the process and not be able to make decisions for themselves.  This can leave parties feeling hopeless.  However, good mediators are often able to help guide even the most unsure parties toward a resolution that could be helpful for them.  
  • Costs: While mediation is often cheaper than litigation, it is not usually free, so the parties will need to pay for the process. This can be prohibitive.  

The decision to use mediation should not be taken lightly; however, mediation has proven results that indicate it is a good choice for separation.  

The Separation Mediation Process: 

The process of mediation is often overwhelming for those new to it.  However, it is fairly straightforward, and preparing for each step will help a party go confidently into the mediation knowing what they would like and how to achieve that goal.  The process typically follows these steps: 

  1. Preparation: Before mediation begins, the mediator will contact the parties to explain the goal of the process and arrange the date, time, and location.  The parties will be preparing their cases for mediation. 
  2. Opening: The mediator’s opening will begin mediation on the day of the meeting.  They will introduce themselves and give an overview of the process.  They will also establish the ground rules for the mediation and highlight any connections that may inhibit their neutrality.  
  3. Party Statements: The parties will take turns presenting the case from their point of view and highlighting the potential settlements that could work for them.  The other party practices active listening during this portion and does not interrupt. This is one portion that the parties will need to have prepared, as it gives the mediator an idea of the points of contention that will need to be solved.  
  4. Negotiations: After their statements, the parties will begin to negotiate their settlement.  This may be in the same room, or it may mean that the mediator separates the parties and shuffles information between the two until they have an agreement.  The couple will discuss the various aspects of their lives that will need to be separated, including child custody and asset division.  
  5. Agreement: The final stage of mediation is the agreement.  This can be one of three agreements.  First, the parties may have reached an agreement on all the terms and the case will wrap up.  They can also agree on some things and sign an agreement with those terms while pursuing another avenue for the other terms.  Finally, the parties may agree that there is nothing they can agree on, and choose to take the separation to other avenues.  

While there may be some variation, most mediations will follow a process similar to this, which means that preparing for such mediation will set a party up well. 

Preparing for Mediation: 

Separation mediation requires preparation to ensure that each party can walk away with an adequate picture of what life apart will look like.  This preparation will not be as intense as litigation, but the parties should still have an accurate picture of the case before attending mediation.  Being adequately prepared for mediation includes the following: 

  • Needs: Each party in a separation mediation will need to identify what they need out of the separation, or things that could make their life difficult if they end up differently.   These are things that the party would not like to budge on unless they receive a lot of consideration in another area.  
  • Want: This is a consideration of the things that a party may want out of the separation but do not need.  These are things that the party can use to negotiate and help establish consideration for the other party.  
  • Interests: These are the reasons behind why a party is asking for what they are asking for.  These are often emotions or other important factors that drive the decision.  Understanding why they are making decisions will help a party find ways to creatively meet their interests.  
  • Opponent: The party also needs to consider the wants, needs, and interests of the other party. Understanding why the opposing party is asking for what they are asking for can help create creative strategies to resolve the separation.  

Being prepared for mediation means that a party knows what they need and how to get it.  In a separation, this may be easy or difficult, depending on the emotions and other factors affecting the parties and their decisions.  Mediation will not always be the best way to separate, but it is often a great way for the parties to work together to create a separation that serves their family well, however they move forward.  

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