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How can mediation produce a fair result?

By encourage each spouse to negotiate for their individual interests, while encouraging respect and dialogue when considering the other spouse’s needs and desires, divorce mediation is often the best way for separating spouses to reach a fair and mutually beneficial resolution in their divorce.

The mediation sessions that are the backbone of the mediation process let each spouse decide what is best for them and how they want to pursue it. At the same time, by placing the spouses in the position of direct negotiation, mediating spouses tend to have a better appreciation for the specific compromises and tradeoffs that were required to make a final agreement. This enables each spouse to prioritize the outcomes they seek from the divorce process that will let them move on and adapt to life after the divorce has become final.

Attorneys play a crucial role in the family law system. However, one byproduct of attorney involvement in an adversarial system is leverage. It is the attorney’s job to identify and exploit the weaknesses and fears of an opposing party. Thus, attorney-negotiated agreements often include elements of dominance and submission, in which one spouse has submitted to the will of the other spouse out of fear, rather than compromise. These power dynamics can lead to less outcomes than mediation, in which leverage takes a back seat to compromise.

A secondary feature of attorney involvement is that attorneys invariably have a very clear picture in their minds of what constitutes a “fair” outcome in a given divorce. Indeed, it is the attorney’s job to explain to a spouse what a fair outcome would be for the client, and most attorneys do this job well. However, what sometimes gets lost in the attorney analysis are the true feelings and desires of the client-spouse, which can be overshadowed by the strong, confident voice of an attorney who thinks he or she knows best. The attorney may dig in and fight on an issue the spouse does not truly consider important. Conversely, the attorney may dismiss issues the spouse feels are extremely important because the attorney’s perspective differs.

Without the presence of attorneys during mediation sessions, the voices of each spouse tends to rings true with respect to a spouse’s deeply-held interests, needs, and concerns for their future well-being, giving the spouses an unfiltered opportunity to articulate what matters most. Additionally, the presence of the mediator during these sessions reduces the power dynamics that can result in pressure and leverage while ensuring that there is no undue influence or imbalance in bargaining power that could result in an unconscionable result. Together, the unique opportunity that mediation provides for spouses to speak and be heard in a controlled environment increases the likelihood of a fair outcome for both spouses.

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