Mediation is a process in your divorce where an independent third party, the mediator, assists the parties in their efforts to reach a mutually agreeable resolution to their contested divorce issues. Mediation is a neutral and confidential process where you and usually your divorce attorney try to resolve as many issues as possible prior to your divorce trial.
The Role of the Mediator in Divorce
The mediator is a neutral party. He has no interest in the outcome of the case other than to try to assist the parties in resolving their differences. He is not a judge and has no authority to render a decision on your divorce or on any of the contested issues. He is a facilitator between the parties. He uses neutral tools to unearth interests, find common ground, and help the parties reach a mutually agreeable resolution to their divorce issues. In divorce and child custody cases, the contested issues vary depending on the parties' unique circumstances, but generally they concern with whom the children will reside (physical custody), who will make decisions concerning their religious and educational upbringing, medical care and treatment, and extracurricular activities (legal custody), how the assets and debts of the parties will be divided (equitable division of the marital property), and what kind of spousal support, if any, is to be paid by one party for the support of the other spouse.
Divorce Mediation is a Mandatory Process in Many South Carolina Counties
To decrease the heavy burden on the South Carolina family courts, the parties may be ordered to try and resolve their differences prior to a final hearing. However, you are only required to attend and to mediate in good faith. You are not required to reach a complete marital settlement agreement during the mediation. Either party can terminate the mediation at any time, as can the mediator. The mediator's goal, however, is to assist the parties in arriving at a mutually acceptable and lasting divorce agreement. If an agreement is reached, it will usually be drafted by the mediator, signed by the parties and their attorneys (who may retype it in formal form) and ultimately presented to the Family Court for approval and incorporation into a Final Judgment and Decree of Divorce.
Divorce Mediation is a Confidential Process
When parties to divorce are presented with opportunities to make decisions in the absence of acrimony or judgment, their marital settlement agreements are generally more sound and sustainable than judgments rendered by a judge with limited knowledge of their particular situation. But parties have to feel confident that the mediator is, in fact, impartial and will not repeat what was said to the judge hearing the case or even to the other party. Accordingly, an agreement is signed which provides that the parties agree not to subpoena the mediator, who in turn promises that he will not willingly testify for or against either party. In addition, he will keep your position on any issue in complete confidence and only reveal to the other party what you allow him to reveal. Confidentiality is waived when parties threaten to hurt themselves or other participants and when allegations of child or elder abuse are made.
Divorce Mediation Success
For divorce mediation to be effective, the mediator needs to create a safe environment where each party is empowered to identify and articulate their individual needs and interests. The mediator also assists the attorneys in explaining to each party what to expect in court and how the law views each individual issue. However, the mediator cannot give you legal advice so it is a good idea to have your South Carolina divorce attorney attend the mediation with you. A skilled divorce mediator brings equality to the bargaining table when one party has superior status, education, intellectual capacity and/or the financial resources to create an imbalance in bargaining power. Although neutral, the mediator should not allow a passive, unsophisticated, and/or uninformed party to be intimidated into a marital settlement agreement that is not fair and in their best interests.
The Role of the Attorneys in Divorce Mediation
The role of your attorney is to provide you with legal advice. A competent divorce attorney will encourage you to resolve your issues through mediation rather than going to trial. He should never advise you to fight over an issue that you cannot win but it can still be used as a negotiating tool. Your divorce attorney's role is to explain the law to you and why you would or would not prevail on a particular issue at trial. His role is also to explain to you what effect a particular decision may have in the future, especially where child custody is disputed. During the process you may feel that your attorney is pressuring you to agree to something that is not in your best interests. It is very important that you speak freely to your attorney and that you understand the various offers that are being discussed. If you do not understand, ask the mediator to step out of the room while you and your attorney discuss your options. Once you agree and the report is made to the court, it is going to be very difficult to change your position. If you have actually signed the agreement, the judge is going to consider you bound by that agreement unless there are unusual circumstances. It is very important to meet with your attorney prior to the mediation and mutually develop a negotiating strategy.
Divorce Mediation Value
As any party that has been through a divorce can attest, there is a huge value in it being over. In a divorce, everything is negotiable and that is the role of the mediator, to negotiate an agreement. If you do not agree, you run the risk of having a family court judge resolve the issue for you. That usually means more months and sometimes years of conflict. Then the judge may rule in favor of the other party. In addition, when the parties reach an agreement, they are both more likely to follow that agreement. If one party is not satisfied with the judge's ruling, that can mean appeals and more years of your divorce being drug through the courts. If the other party does not follow the agreement, your only recourse is to file a contempt petition in the family court.
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