Divorce Mediation 101

July 25, 2022

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During a divorce proceeding, if you are not able to reach a settlement with the opposing party on all aspects of your case, the judge assigned to your case will be required to resolve any remaining disputes at trial. While judges in Nebraska often give thoughtful and creative attention to your case to help resolve disputes in a way that makes sense for everyone involved, no judge can understand your family and its special dynamics, relationships, and nuances like you can. Because divorce often deals with issues that will affect your day-to-day life even after the proceeding is finalized, it can be important to make every effort at retaining the ability to choose the outcome of your case, rather than having the outcome of your case ordered for you by a judge. Avoiding court can also often save you time and money. One way to retain control, save time and money, and reach a mutually agreeable solution is to engage in divorce mediation.

What is mediation?

Mediation is a form of alternative dispute resolution which focuses on resolution of a case by utilizing a third-party neutral model. The mediator is a neutral third party that does not represent either party in the divorce case and whose goal is to assist the parties in coming to an agreement. The mediator does not make any decisions for the parties and cannot provide either party with legal advice, even if the mediator is a lawyer. The judge is not present during divorce mediation and will not be made aware of the events at mediation apart from a final mediated plan, if any. The mediator’s goal is to facilitate negotiations between the parties in a way that results in a deal that both parties can live with.

What makes a good mediator?

A good mediator utilizes “reality testing” to help each party explore how their proposal might play out if the other party agrees to it so that each party can negotiate with an eye on how their proposal might look in practice. The mediator will also help parties “reality test” the opposing party’s proposals, encouraging parties to really think about what is being offered rather than relying on a knee-jerk reaction to the opposing party’s proposals. After all, you and your soon-to-be-ex-spouse are the ones who will be living with these agreements following the entry of the Decree, not the mediator, judge, or lawyer. If you cannot come to a voluntary agreement with the opposing party during mediation, then no settlement is reached at the time of mediation and nothing binding results from the mediation process.

What types of divorce mediation exist?

There are two main types of mediation that individuals may utilize as part of their divorce process: 1) parenting plan mediation (for divorcing individuals who have children), and 2) financial mediation.  For divorcing couples with children, the Nebraska Parenting Act, codified at Neb. Rev. Stat. 43-2920 to 43-2943, requires that in every proceeding in which parenting functions of a child are at issue, a parenting plan shall be developed by the parties or their counsel. The Nebraska Parenting Act also requires that the Court approve the parenting plan as part of the final dissolution decree after determining that the parenting plan is in the best interests of the children. In many counties that attorneys from Hightower Reff Law practice in across Nebraska, parenting plan mediation is required or routinely ordered as a matter of course. Under the Nebraska Parenting Act, parties who do not submit a parenting plan within a certain amount of time may ordered by the court to participate in mediation.

Parenting Plan Mediation

Parenting plan mediation is a great tool for divorcing individuals with children because it can often be difficult for divorcing parents to think ahead to determine what future disputes can be resolved by the parenting plan. Under the Nebraska Parenting Act, individuals who do not have formal legal training as an attorney must complete special training in order to become a Parenting Act mediator. This means that most individuals mediating parenting plans are specially trained to include certain information and agreements in the parenting plan. Most parenting plans include custody, regular parenting time, holiday parenting time, vacation parenting time, and general clauses about parental communication and child-related logistical issues that help govern a parent’s relationship with a former spouse and current co-parent. Often, if a resolution is reached, the mediator will be the one to draft the final parenting plan, ensuring that the plan itself is drafted by a neutral third-party.

At Hightower Reff Law, we look at the parenting plan as a base-line document: when you and your co-parent are getting along well, you can work together to go above and beyond the parenting plan in order to figure out creative solutions that work for your family and which might respond to a unique need in a special circumstance, but when you are your co-parent are disagreeing about certain issues, or unable to come to a consensus, the parenting plan provides an integral base-line for problem solving. Can’t decide on who should pick up the child? Just follow the parenting plan.  Can’t decide who should have Christmas Day this year? Just follow the parenting plan. Can’t decide when Mom can take her summer vacation with the children? Just follow the parenting plan. Having a good parenting plan in place can be crucial for reducing future conflict between you and your co-parent regarding your children. For many co-parents, their children are the one aspect of their life that they will continue to include the other parent in and will continue to communicate regularly with their co-parent about.

Financial Mediation

Financial mediation is also an option for divorcing couples to resolve conflict and reach an amicable settlement. In financial mediation, the mediator also acts as a neutral third party with no authority to bind the parties if the parties do not come to a voluntary agreement. At trial, parties and their attorneys formally present the facts of the case to the judge through argument and testimony. At mediation, the same facts are discussed in a much more informal manner with the mediator. Exhibits are reviewed and discussed and the issues for negotiation are identified. The mediation process allows for both sides to informally present their arguments and reasoning in a practical way rather than relying on formal testimony to get their point across.

Mediation is a great tool for reaching thoughtful and creative solutions to your family law case. If you would like to discuss mediation with one of our attorneys, contact Hightower Reff Law today.

This article should not be construed as legal advice. Situations are unique from one another and it is impossible to provide legal advice for every situation without knowing the individual facts.

If you need help with a divorce case, contact Hightower Reff Law today.

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