How I Use Divorce Mediation as a Divorce Lawyer

For most couples, the idea of divorce is daunting.  When a marriage comes to an end, you are emotionally raw, yet also must keep a level head to protect yourself, your family and your interests.  Instinctively, parties will think to call a divorce lawyer first to help them get a handle on the legal divorce process.

However, many people have an aversion to court.  They only know what they have heard; that divorce is costly, aggravating, and contentious.  Yet this bad reputation does not have to be your experience.  More and more couples are turning to alternative methods to resolve their family law disputes in creative ways that best suit their family, specifically with the help of mediation for divorce. 

The first step to preparing for divorce is educating yourself on the legal steps then identifying your options for how to accomplish your desired outcome. Do you want to proceed with courtroom litigation, or are you willing to participate in a more collaborative approach and try divorce mediation? There are certainly pros and cons to both, and not every option is the right fit for your family. 

Hopefully this article will shed some light on the legal options for divorce and provide a legal practitioner’s input.

Divorce in PA - The Litigation Process

The divorce process in PA starts with one party filing a Complaint for Divorce in the appropriate county.

1. Will your divorce be contested or uncontested?  This becomes relevant (aside from the obvious reasons) for the purposes of legal filings and the time line of the proceeding.  Your attorney will need to plead under a specific section of the statute depending on the parties’ ability to agree to the divorce or not.
2. Establishment of the Date of Separation- PA has no form of legal separation, so the date of separation is determined when the parties begin living “separately and apart.”  This can mean that they live together under the same roof, but are in separate bedrooms living more as roommates rather than husband and wife.
3. Division of Property- PA uses the principle of Equitable Distribution to divide martial assets. A divorce cannot be finalized without resolution of all outstanding financial claims.  Often this is where the divorce process stalls and most time is spent.  

How I Use Divorce Mediation as a Divorce Lawyer

Mediation can be an important tool when negotiating a property settlement or get parties past a stalemate.  Frequently, there are emotional attachments blocking parties from approaching the negotiating process with clarity.  If that is the case for my client, I often recommend a divorce mediator intervene to attempt to move past this block and address the real issue before negotiations resume. (It is not ethical to represent a client and then also act as their mediator, so I refer my client a compentent attorney who acts as a divorce mediator.)

Clients are often quick to throw in the towel when negotiating, knowing that court is always an option.  However, what they do not always realize is that what may be significant to them, may not be in the eyes of the court or under the law.  As a result, the issue might not be decided by a trier of fact in the way a party might want it resolved or could have it resolved in divorce mediation.

Why Consider Litigation over Mediation

• Each party will have a full and fair opportunity to present all evidence and testimony on the record to support their claim.  For some clients, they merely want their day in court and litigation provides that opportunity.  For others, they feel that unless all of their issues are heard by the court, they have no other way to express their point of view. 
• The opportunity for discovery requests; i.e. to request documents or information from the other side such as income statements, bank account information, pay stubs, etc.
• The ability to have an attorney express you point of view on your behalf.
• Allows parties unable to reach an agreement to gain resolution through a judge.
• Provides a venue for parties who for one reason or another who have completely lost the ability to communicate directly with one another or refuse to communicate directly with each other.
• By taking part in the justice system, it creates a perception of formality about the process that can be beneficial in providing closure for some parties.

Why Consider Mediation over Litigation

• Saves money preparing for and putting on an entire court hearing and hiring counsel.
• Allows parties to tailor a creative agreement unique to their family.
• Can diffuse some of the animosity between parties.
• Can resolve the divorce in a shorter period of time.
• Can minimize emotional toll on children.

The Compromise

I work by the credo of “be reasonable until you cannot be reasonable anymore.” 

What I mean when I explain this to my clients is that I always approach a divorce from the human point of view.  The parties should at least try to negotiate a settlement that works for both sides first before rushing to be at each other’s’ throats in court. 

If, after this negotiation or mediation is exhausted they still cannot resolve the issues, it is then appropriate to prepare for a court hearing.  It is counterproductive to refuse discussion of the issues at the outset.

Many judges or divorce masters will want to know if the parties attempted to settle any of the possible issues before coming to court. Ultimately, litigation and mediation should not be looked at as mutually exclusive.  They should be viewed as a primary and secondary option both available to parties at all times during the process.