Mediation and Divorce
Unfortunately, the trivial way to get a divorce and solve disputes between a couple is to go to the court, to have a long legal procedure which is complex and often expensive too. At the end, the parties find themselves injured, tiered and exhausted. Their relationship will never go back to being in order (which could be significant when having children together). The sad thing is that this “trivial” way is the common way to solve disputes.
In this article, I will try to show a different way, to present a different alternative, to this approach. I will present a way called “divorce by mediation”.
The article will be built as follows: at the first stage, I will explain what the divorce procedure is and what stages build it. In the second stage I will explain what mediation actually is. In the third stage I will explain how the mediation procedure is done in the framework of the divorce procedure, I’ll present its advantages and disadvantages and explain shortly what the difference between couple therapy and mediation is.
What is a divorce procedure composed of?
A divorce procedure is made of a few separate steps that, together, constitute the “divorce procedure”. I shall present these procedures shortly:
Divorce in the Rabbinic court: a couple who what to divorce need to file a claim to the Rabbinic court. Only the later has the authority to sit in judgment in matters of divorce and marriage as well as the authority to rule regarding wife and child alimony. In addition, there are times when the Rabbinic court can rule in matters of property and custody but there are conditions to that. Let me clarify, the divorce claim is only one procedure in the framework of the whole divorce procedure.
Child custody: when a couple have children together, they need to regulate the division of custody between them. This can be done by an agreement or by a court’s ruling. For this, you need to claim for custody, which is an additional procedure in the framework of the whole divorce procedure.
Alimony: when a couple have children, these children are entitled to alimony from their father. For this, you need to file an alimony claim, which is an additional and separate procedure in the framework of the whole divorce procedure.
Division of property: if the couple does not agree to divide their common property, they will have to file a claim for property, which is yet a separate claim in the framework of the whole divorce procedure.
What characterizes a divorce procedure?
It seems that the main characteristic in the divorce procedure is the emotional difficulty, which brings, in many cases, to feelings of anger, revenge and rage between the couple. These feelings, as in any other field of life, don’t bring you to good places. As a lawyer who deals with family law and mediation before divorce, I’ve seen during my years of experience, how these negative feelings bring the couple to go to unnecessary wars at court, wars that destroy the family relations and the relationships between the children and parents. These wars can also cause the parties to pay out large sums of money and some even go broke. This money could have been spent on other things and instead, come out on the expense of the couple’s and children’s welfare.
In addition to all the above mentioned, there are still some other aspects of the divorce procedure that you should know:
Financial difficulties: during the couple’s life together usually both parties work and get two paychecks and carry the burden of supporting the family together. During the divorce procedure, one of the parties usually leave home. Suddenly, each one of the parties has to make do with his/her own pay check. The cost of living doesn’t change but, in addition, there are extra costs for child alimony. That is why, in some cases, the period of divorce is characterized by financial difficulties.
Feeling of loneliness: the couple are used to living together. At the time of the divorce (certainly at the first stages), the parties find themselves alone. This is a very drastic change in life and due to this, the period of divorce is characterized too by loneliness.
Social difficulties: like loneliness, there is usually a distancing of the couple’s close friends during the divorce procedure. Usually, most of the couple’s friend are common friends which could cause awkwardness. During the divorce procedure the parties often find themselves struggling with supporting themselves, which does not leave them much time to have a social life as they were accustomed to during the marriage.
What is mediation?
We might not be able to save the marriage and, that is not the object of mediation to divorce. The object of the process is to bring the couple to the divorce in accord and thus to avoid long, expensive and cumbersome legal procedures that don’t really help.
Mediation is a procedure where we try to bridge between people, or, in our case, the couple. The procedure is conducted by a certified family mediator, who is usually a lawyer (in most cases a family lawyer), who has been specially trained in mediation.
During the last years the courts are encouraging going to mediation, which is recognized as an alternative to litigation. In family law, mediation has many benefits. It is much cheaper than legal procedures, eases the procedure and is usually faster and more efficient.
In contrast to the legal procedure, the mediator is not a judge, has no authority to determine between the couple’s claims, rather, he/she must create a “bridge” between the couple and bring them to an agreed compromise. In the court, the judge’s role is to rule regarding the couple, for better or for worse, as will be explained below.
How is the mediation procedure conducted?
The mediation is usually conducted at the mediator’s office, according to the mediator’s and the parties’ schedules. The first meeting is usually an introductory meeting, where the parties and the mediator arrange the procedure and the cost. After that, they have a number of meetings, according to their needs and the couples wish.
It should be noted that mediation is not a legal procedure. The couple do not have to be represented by a lawyer. The mediation procedure does not include complex legal procedures etc. all the couple need do is to voice their claims before the mediator and the later should bring them, eventually, to an agreement.
What are the benefits of mediation to divorce?
The mediation procedure has many benefits:
A pleasant atmosphere: the court is stressful, alienated and unfriendly to people who are not lawyers. All the more so, the court is not friendly to witnesses. Most of the legal procedures take their time and are held in an unpleasant atmosphere. All this is enhanced by the divorce procedures, which are characterized by a tense negative atmosphere where the couple want only to discredit each other.
Things are different when it comes to mediation. The procedure in held in a pleasant atmosphere, in an air-conditioned office, the meeting includes refreshments, with no time limitations and no need for courtesies that characterize legal procedures. Mediation does not include investigations, summing, embarrassing questions etc. Family mediation has one goal: to make the atmosphere more pleasant so as to prompt the couple to come to a compromise, agreement, peace.
Easy monetary cost: a regular divorce procedure is expensive and very costly. Divorce proceedings, from the first stage to finish, which includes filing for divorce, custody alimony and division of property, might cost tens of thousands of Shekels if not more. These are very high sums, certainly not held by any regular guy. On the other hand, the process of mediation costs, usually, several thousands of shekels each. These amounts are reasonable. Moreover, any mediator to divorce and any office or establishment dealing in mediation to divorce enables convenient payment arrangements.
Keeping in good contact: As I will further state, in the legal procedure there will always be a “losing” side. As stated, the role of the court is to rule, not mediate. By the time you get to a legal ruling, “much water can flow under the bridge”. The parties will be examined and cross examined, negative material will be collected about each other, submit many requests that will show each of the parties on a negative light. So, from my experience, the legal procedure will always harm the relations between the couple.
It is true that the relationship was faulty to start with, otherwise there would be no need for divorce, but many couples divorce and manage to keep a good relationship. This is needed when the couple have children together. On the other hand, mediation is held in a different atmosphere. Neither one of the parties has to discredit the other – there is simply no need. Neither one of the parties has to go through an embarrassing and humiliating examination. All the parties need do is present their claims and wishes and enable the mediator to do his/her work, i.e. get the couple to compromise.
The couple manage the procedure: in the framework of the mediation procedure, the couple are the initiators, with all that is implied. They are not dependent on the judge’s time at court but they are the ones who decide when the procedure will take place, how long it will last, which subject will be discussed at which meeting etc.
This is not the case at court: it is the court who decides when the hearing will take place. The judge decides which subjects will be discussed and how long the parties will be able to present their claims etc. moreover, at the court there are more cases waiting to be heard. As mentioned, the court’s time is limited. In the process of mediation to divorce there are no such limitations, stress and tension. In the mediation process the couple are the ones who dictate the pace and are not managed by another agent.
Compromise: in a legal procedure, the couple will get a legal verdict. This verdict/ruling will always favor one of the parties i.e. there will always be a winning side and a losing side. It has been said that:
“Says the Midrash on the verse, “and I have judged between a man and another” (Exodus xviii XVI) and judged – it’s the law without compromise, between a person and between his comrade – this is the law with a compromise, because they become comrades (friends) to each other.”
On the other hand, in mediation to divorce both parties come out as winners: they decide to reach an agreed compromise, which is the interest of them both. In mediation, the couple are not supposed to agree on a compromise which is not in the best interest of both parties. It is true that compromise requires waivers but this doesn’t mean loss but concession to give-up on one point in order to gain in the next point.
Speed: as known, the Israeli justice system is overloaded. Hearings can go on for years and are spaced months apart. Mediation is quick, it is the couple who schedule the meetings and, as mentioned, determine how the mediation will be conducted. If you want to divorce quickly and start a new page in your life, family mediation is your best option.
What are the downsides of mediation?
The need to make a decision: sometimes the couple has a dispute which needs a legal ruling. During the years, from the establishment of the state of Israel, a number of fundamental judgments have been given, not only in family law but in the general field of constitutional law (basic principles, human rights etc.) so there are times where, in the field of family law, a case should be held in court due to the fact that the decision is “in principle” and can project on the whole.
Stalling: experience shows that, there are some case where, a couple comes to mediation and, one of the parties, abuses the procedure. For example one of them uses the time to smuggle assets. As mentioned, the mediation procedure is not limited in time, which is usually a great benefit but sometimes, there are couples who need to be limited in time and then it is better to be go to court.
Compromise is not always a victory: there are people who will say that, sometimes, during the mediation process, one of the parties will come out frustrated, this might rightfully be so. There are times where one of the parties is completely right in his/her claims. That is where the disadvantage of the mediation process lies, where one could come out of the process with a feeling of injustice.
Sometimes it doesn’t work: as mentioned, a mediation is not a judge, for better or for worse. A judge has jurisdictions given to him/her by law. A mediator has jurisdictions to mediate between couples but this jurisdiction is subject to the couple’s agreement (who can stop the process at any moment), so, if one of the parties is completely right, the mediator cannot decide that he/she is right; he/she need to direct the couple to an agreement – which doesn’t always work. Sometimes the couple cannot and/or do not want to reach an agreement, sometimes there is no way to get them to agree. This is actually the main disadvantage of the mediation to divorce procedure – sometimes it just doesn’t succeed.
What is couple’s therapy?
Mediation is a process meant to bring the parties to an agreement regarding the divorce. Mediation can of course be used to reach an agreements in other subjects, ones that are not connected to family or divorce. This being said, mediation is a procedure that is used in legal procedures or preliminary ones (towards a court hearing)
On the other hand, couple’s therapy is done by a “therapist” – a person who has been trained and whose goal is to bring the couple’s relationship to a mend. Mediation is not meant to rehabilitate relationships but rather to bring the couple to agree regarding the fundamental/financial issues, towards the divorce procedure. The couple’s therapist’s goal is to aid the couple’s relationship, not in the context of divorce but rather to prevent divorce. A mediator is usually a lawyer who has been trained as a mediator. On the other hand, a couple’s therapist has been trained as a psychologist.
What do we do at the end of the mediation process?
At the end of the mediation process, you need to sign the agreement. This agreement can include agreements regarding the implementation of the agreed divorce procedure, i.e.: the divorce agreement that will be presented to the Rabbinic court. In addition, if the agreement refers to child alimony and custody, it needs to be validated by a family court or the Rabbinic court. Representation is priced separately from the divorce procedure, by a mediator who is a lawyer.
After the divorce agreement is presented, a ruling will be given regarding the matter, i.e. the Rabbinic court will rule for divorce and an agreed divorce will be given. Regarding matters of child alimony and custody, a ruling will be given which is a court order. From the moment of the ruling, the agreement is validated and legal.
Tips for someone interested in going to mediation:
In the hope that reading this article has convinced you to go to a procedure of mediation rather than a legal procedure, there are still a few golden rules that are important to implement, during the mediation procedure, starting with choosing the mediator and ending in the actual conduct during the mediation, as follows:
- Receive separate legal consultation: the most basic recommendation is to receive separate legal consultation. Moreover, during the mediation procedure, you can use and be aided by a lawyer. In addition, at the same time, you can, and it is advisable to, use the services of a lawyer before mediation and during the process separately too. Legal advice can shed light on your rights and in some cases help you make decisions during the mediation process.
- Make a thorough check of the mediator’s resume: assuming you have chosen a mediator or you are debating between a few mediators, my suggestion is: make a thorough check of the mediator’s resume. There are many good mediators but they specialize in civil disputes and not family law (these are two different areas needing separate knowledge and expertise). There are mediators who do handle family law but do not have much experience in this field. It is important to use a lawyer and mediator with much experience in the field. The fact that a lawyer handles cases in family law does not necessarily reflect on his experience as a mediator. The mediator’s role is a sensitive and special role needing special knowledge.
- Make sure the mediator has certification: unfortunately, there are charlatans in this field, who present themselves as divorce mediators but are not certified to do so. In Israel there is no clear ruling that regulated the powers of mediators, except for the ruling regarding the licenses of the mediators. That is why, the basic rule is, choose a mediator who has a license, i.e. a certified mediator. Make sure the mediator has a certificate for a known establishment. Don’t be lured to use lawyers who have much experience as lawyers but not as mediators.
- Handle the mediation procedure with good intentions: you have decided to go to mediation? Handle the procedure in good faith and don’t abuse it for getting unjustified benefits. Come with an “open mind”, believe in yourselves and in the process. Try to solve the problem quickly and efficiently. Try to be more flexible in your positions, understand that the other party has difficulties and wishes too. Bottom line – handle the procedure with good intentions and with honest will to solve the dispute.
To sum up:
In the article you have read I have suggested alternatives to the known divorce procedures, which usually amount to long, complex legal procedures that are emotionally and financially difficult. The alternative is to divorce in agreement by a procedure of mediation.
Mediation procedures have so many more benefits than disadvantages: it costs less, it is held is a pleasant atmosphere etc. in addition, it helps keep a good relationship between the parties after the marriage ends and it is so much faster than the regular legal procedure.