Did you know?
Statistics on Divorce and Mediation
- A litigated divorce takes more than a year to conclude and can easily cost $15,000 or more. Mediation takes less time and considerably less money than litigation.
- In the past 40 years, the nation’s marriage rate has dropped from three-quarters of American households to slightly over half. Nearly 50 percent of all U.S. marriages now end in divorce, and the number of households with unmarried couples has risen dramatically.
- Married couples with children now comprise only 25 percent of all American households. The number is expected to fall to 20 percent by 2010.
- Before they reach the age of 18, an estimated 45 percent of American children will watch their parents split up.
- In one study, more than two-thirds of mediating couples said they were “highly satisfied” with the process and 93 percent said they would recommend mediation to others. On the other hand, only 20 percent of couples who litigated their divorce described the outcome as “fair.
- Nearly 90 percent of mediated divorce cases settle successfully.
What is mediation?
If you and your spouse are thinking about getting divorced, you may feel like you’re locked in a zero-sum game: someone has to lose in order for someone else to win. Unfortunately, that’s usually what happens when we turn to the courts to settle our disputes. In fact, studies show more than 50 percent of divorcees feel that the legal system itself damaged their relationship with their ex-spouse.
There is a better way!
Mediation is the civil and sensible alternative to a courtroom battle. In divorce mediation, a skilled, neutral mediator works with you and your spouse, using a step-by-step approach to gather information, balance communication, generate options, and—after all parties have had their say—negotiate a mutually agreeable settlement. Divorce mediation takes the parties out of combat and redirects their energy toward resolving the issues so they can get on with their lives.
Virtually all family matters can be mediated successfully. Mediation creates better outcomes than litigation, especially if child custody and co-parenting issues are involved. In fact, studies have shown that litigants in an adversarial divorce are three times more likely to return to court than participants in a mediated divorce.
While mediation cannot remove all conflict from a divorce, it can keep it from escalating. Even if you and your spouse are very angry with each other, isn’t it better to try and resolve your differences than take your chances in a courtroom battle? We can help you and your spouse explore the issues — in separate rooms if appropriate — and reach consensus much more quickly and far less expensively than going to court.
How mediation works
Mediation is an exercise in diplomacy. The goal is to help the parties find areas of agreement.
A typical mediation includes you, your spouse, the mediator, and sometimes your children. The mediator is a neutral party whose job is to help you and your spouse discover common ground so you can avoid the often bitter consequences of a contested divorce. Mediation is voluntary and the mediator is not a judge. He or she will not make decisions for you, nor force you to agree to anything.
Although every mediation is unique, all mediations follow a structured process. The mediation is usually held in our office and begins with a joint session with you and your spouse in which we will explain the process, discuss your expectations, and answer any questions you may have. The mediator will then meet with each party individually for a few minutes to get a sense of the negotiation and communication dynamics between you, as well as any special concerns you may have.
Once the preliminaries are completed, mediation can proceed in one of two ways. If appropriate, you and your spouse will meet together with the mediator to address the issues previously identified. If it appears that a joint session would not be beneficial, you may meet in separate rooms so that the mediator can conduct private sessions with each of you (sometimes called a “caucus”). The mediator will then travel back and forth between the rooms until either an agreement is reached or it appears settlement is not possible.
Mediators play several roles during a mediation. We manage respectful communication between the parties so that everyone has the opportunity to be heard and share their concerns. We provide legal information about the process of divorce and the legal issues being mediated. We also help the parties gather the factual and legal information needed to make good decisions, assisting the parties in exploring options for resolutions and facilitating the process to final agreement. We empower the parties to make their own, fully informed decisions. To some extent, we are also “agents of reality,” helping the parties make reasonable decisions that meet everyone’s needs.
Mediation can vary in length from one session lasting a few hours to several sessions lasting a few weeks. The time required depends on the complexity of the issues and the parties’ willingness to agree. In most cases, mediation is much faster and far less expensive than litigation.
In order to help you and your spouse achieve the best possible outcome, we have several ground rules. These rules are part of the agreement to mediate and they are legally enforceable whether or not you resolve the issues through mediation. These include:
- All discussions in mediation are confidential. We cannot be called to testify in court, nor may you or your spouse disclose in court what options or offers were discussed in mediation if you have not reached agreement.
- You and your spouse must disclose requested financial information. If either participant refuses to cooperate, we reserve the right to terminate the mediation.
- Although we can discuss the potential legal consequences of various options with you and your spouse, for obvious reasons we cannot provide either of you with legal advice. By definition, a mediator is neutral and does not “represent” either you or your spouse as an advocate. You are always free to consult with your attorney for advice between mediation sessions and prior to the time you sign any agreement reached through mediation. Your attorney may also attend one or more mediation sessions with you to be certain that you have considered all of your options and are making the best decision for yourself and, if you have children, your family. If the mediation is not successful, the attorneys can proceed to prepare the case for litigation.
Basic issues to be decided in a divorce or separation
- Custody. If there are children under the age of 18, legal custody and parenting time must be considered. Custody means the right to make major decisions for the child, such as medical care, religion, education, and residence. Sole custody gives the right to make major decisions to one parent. Joint custody means that both parents agree to share major decision-making. Custody does not affect the day-to-day and routine decisions made when the child is with a parent, nor does it determine the parenting time schedule. Regardless which parent has custody, both parents are entitled to consult with medical professionals and school personnel, receive the child’s medical, educational, governmental, and other records, and authorize emergency health care if the custodial parent is unavailable.
- Parenting time is the schedule that children follow to spend quality time with each parent. It includes a regular weekly or biweekly schedule and provisions for holiday and vacation time. A parenting time schedule should take into account the age of the child as well as other factors. The word “visitation” is no longer used in Oregon as the Legislature has determined that parents do not “visit” children, but parent them. The policy of the state is to foster frequent and continuing parenting time between children and each parent when parents have shown the ability to act in the best interests of the child. See Parenting Plan information: http://www.ojd.state.or.us/ParentingPlanGuide
- Parent Education Classes. Oregon requires all parents with children to attend a mandatory parent education class on the effects that divorce or changes to the family structure have on children. Each county has its own program. See Parent Divorce Education Programs, http://www.ojd.state.or.us/osca/cpsd/courtimprovement/familylaw/index.htm
- Child Support refers to the amount of money that the child is entitled to receive from his or her parents. The amount of child support is based on an income shares model. Although both parents have the obligation to support their children, child support is paid by one parent to the other based on factors such as each parent’s gross income and the parenting time schedule. Once a child is 18, so long as the child is a “child attending school” as defined by Oregon law, child support is paid directly to the child. Unless agreed otherwise, child support terminates at 18, or if the child is a “child attending school,” at age 21. See Online Oregon Child Support Calculator, http://www.dcs.state.or.us/calculator/
- Division of Assets and Liabilities. The parties must divide the assets and liabilities acquired during the marriage in an equitable manner.
- Spousal Support or Alimony. In certain instances, an equitable amount of spousal alimony/support may be paid by one party to the other for a period of time. Types of spousal support include transitional, maintenance, or compensatory support. Other issues may include payment of health insurance premiums, uncovered health care expenses, life insurance, tax-related issues, and others. Each case is unique and will have its own particular set of issues.
- Prenuptual Agreement. A prenuptial agreement is a contract entered into by a couple prior to their marriage or civil union. Prenuptial agreements commonly include provisions for dividing property and for spousal support, should the marriage break up or the couple divorce.
Benefits of mediation vs. court litigation
| Issue |
Litigation |
Mediation |
Benefits of mediation |
| Time |
Lengthy |
Short |
Avoids delays; participants can get on with their lives |
| Cost |
Costly |
Inexpensive |
Higher satisfaction; less financial stress |
| Confidentiality |
Public records |
Confidential |
Avoids negative publicity |
| Decision-making |
Left to the court |
In the hands of participants |
Greater commitment to follow-through; greater sense of "fairness" by participants |
| Communication |
By attorneys |
By the parties |
Clarity; may improve long-term relationship |
| Agenda |
Set by the court |
Set by the parties |
Participants feel greater sense of control |
| Emotions |
Often ignored |
Considered |
Greater satisfaction with result |
| Control |
By attorneys and the court |
By the parties |
Participant may end mediation at any time; participants feel empowered |
| Compliance |
Unknown |
High |
Less chance of re-litigation |
Glossary of terms
ADR or Appropriate/Alternative Dispute Resolution
Refers to all methods of conflict resolution other than litigation, including mediation and arbitration.
Arbitration
An arbitrator is appointed by the parties to make a binding decision from which there are very limited grounds of appeal. Arbitration is similar to a trial, although strict rules of evidence and procedure generally do not apply. Arbitration is arguably cheaper and quicker than going to court.
Litigation
Refers to the process of conducting a case through the courts. The time, expense, and adversarial nature of litigation are the primary reasons for the growing popularity of alternative dispute resolution.
Mediation
A voluntary, guided process where an impartial mediator helps the parties to reach agreement so that a final written agreement final agreement can be submitted to the court and made an order of the court.
Legal marital separation
A legal process by which a married couple may formalize a de facto (actual) separation while remaining legally married. A couple may obtain a legal separation as an alternative to divorce when there are moral or religious objections to divorce. Legal separation does not automatically lead to divorce. If a couple reconciles, they need do nothing in order to remain married. If they do not reconcile, and decide to divorce, they must explicitly file for divorce.
Divorce or dissolution of marriage
The final termination of a marriage, which cancels the legal duties and responsibilities of marriage and dissolves the bonds of matrimony between two persons. In the United States, divorce requires the sanction of a judge in a legal process to complete a divorce.
If you have any questions or would like more information, e-mail us at islezak@ingridslezak.com, or give us a call at 503 241 3777.
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