Why Use Meditation?
A typical divorce in New Hampshire has three main parts: property distribution, parenting and support. For property distribution, the process starts by determining what assets and debts the parties have, and what the value is for each. Ultimately it will need to be decided who will own what assets and who will be responsible for each liability. To do this consistently, the court has a list of 21 issues that must be addressed. These are each set forth in the final decree. They range from determining what will happen with the martial residence to deciding if life insurance will be required as collateral for an outstanding obligation.
If the parties’ have minor children, New Hampshire requires that parenting also be specifically addressed. These issues are set forth in a document called a parenting plan. The parenting plan has 15 major sections each addressing a different topic. The topics range from what the regular parenting schedule will be, to setting forth the specifics regarding each parent’s right to relocate. The parenting plan controls where the children go to school and how different types of decisions will be made. The parenting plan says when the children will be with you for holidays and even what happens for vacations. When parents can’t agree, the parenting plan is what controls.
The third part of the divorce is the determination of support. There are two kinds of support in New Hampshire: child support and alimony. Child support is calculated using a formula that takes into account each party’s income, the cost of health insurance for the kids, the cost of childcare each month, payment of state taxes and any mandatory retirement contributions. This then provides a guidelines child support amount. That amount can then be increased or decreased based on numerous factors. Alimony is also calculated using a formula. That formula is based on each party’s income, the cost of health insurance for a spouse, and payment of child support. Similar to child support, this amount can then also be increased or decreased based on numerous factors. The documents used to set forth support are called the uniform support order (USO) and the alimony support order (ASO).
A divorce case is complete when the 21 issues in the final decree, the 15 sections of the parenting plan and the two support calculations are determined. In New Hampshire, the family court judges have the training and the authority to make all 38 of those decisions and issue a divorce. But that isn’t how it has to happen. The parties can also decide to try and make these decisions themselves. Once a party asks the court for a divorce, the issues will be addressed, a decision will be made. The choice you have is how that will happen. Do you really want a stranger making those decisions for you?
After many years of practice and working with hundreds of families, in our office we know that clients are better able to make these decisions for their families than a judge who is a stranger to them. During a divorce, people are dealing with every major aspect of their life: where they will live, when they will see their kids, what will happen to their property, and much more. Those 38 questions are not hypothetical, they are representative of everything that matters in their life. The problem, however, is that the traditional court process is not equipped to effectively deal with all these issues. For example, when a divorce case gets started in court, there is often times a temporary hearing. At this hearing the judge will decide important issues such as who will live in the home and what support will be paid while the case is pending. In a temporary hearing, each side may only have 15 minutes to present their case and from there it may be another year before a final hearing. It is not uncommon to wait weeks and even months to get a Judge’s decision and even then it may not address all the issues. You are at the mercy of the Court’s schedule and the judge’s availability. Even when you do finally get your day in court, the order may not be what you had hoped. Even well-meaning, smart, and compassionate judges may not make the best decisions for your family. When you and your spouse make these decisions, the entire family benefits.
In a recent training that we did for litigators, we included photos of what the last three U.S. Presidents have looked like when they entered office and when they left. The stress of the job, the worry, and the scars of their daily battles showed on each of their faces well beyond what the normal years would have. As lawyers there was agreement that this is akin to what we see in our clients after protracted litigation. They cannot move on, they cannot settle in a new life, and they cannot start to heal. You can see it on their faces and we watch it happen. Mediation isn’t always easy. It requires working with someone that may have really hurt you. It means putting aside your own solutions to hear ideas from the other side. It means having to compromise, and sometimes it means giving up something that you were clinging to. It also means that the two of you get to make these important decisions about your life. You get to make sure that things that are important to you are addressed. You get to decide when and how to move on. You get to decide how those 38 issues are handled, instead of handing them over to a stranger.
There are many different reasons to choose mediation. It can be as simple as cost and as lofty as trying to improve or maintain your relationship moving forward for the benefit of your children. Below are just some of the reasons that our clients have chosen mediation. We are happy to talk about any or all of them with you in more detail.
Benefits of mediation
- Avoid Court: If parties are able to reach a full agreement, there is rarely a need to actually go to court. Upon reaching such an agreement, it is memorialized in one or more documents which are then filed with a court. In such cases, the court’s involvement is often limited to approving the agreement of the parties.
- Client Satisfaction: There is a cost to conflict that far exceeds monetary expenditures. The stress, uncertainty, and acrimony associated with litigation can be mentally and physically taxing. Some people have a preconceived notion that they will be vindicated through the court process – that someone will tell them they were “right” or that they have indeed been “wronged.” In truth, litigation provides no such easy answer. Rather, most parties find themselves pitched in a long and arduous battle after which they merely feel frustrated and unheard. It is rare that our litigation clients are truly satisfied with the process of litigation, even if they feel that they have gotten a good result from the judge. The process itself takes a toll and clients frequently ask themselves if the result was worth it. In mediation, we aim to create a respectful and supportive process to help you move through this difficult time. It is not about judgement or blame for the past; it is about resolution and moving forward. The idea is to create a forum for you to reach agreements together about how this transition will ultimately resolve.
- Control of the Process: The decisions that need to be made in these cases are about your finances and your family. Ultimately, the decisions will be made, but the question is: “Who is going to make them?” In a litigated case, a judge who knows little or nothing about your family will be making decisions that will impact your family forever. Mediation allows you to enter into agreements that work best for your family. The process is about deciding – together – what is best for your particular case. The agreements that have come out of mediation are as varied and unique as the families that are involved. We are continually awe-struck at the creative and ingenious solutions that develop in the mediation process, especially so when the solution was to a problem that appeared insurmountable only a few hours earlier.
- Reduced Cost: Litigation is expensive, and the total cost is highly unpredictable. Cases are frequently postponed at the last minute, and it is the clients who pay for the time their lawyer spent preparing for the hearing- much of which will be spent again. Each litigation case has a lengthy process called discovery which involves exchange of numerous documents, written interrogatories and sometimes depositions. This process can feel endless and can raise legal fees without actually moving the case forward in a meaningful way. Clients in mediation can waive the exchange of documents especially when everyone agrees on the financial facts. Concerns are discussed instead of having an attorney interrogate your spouse under oath at a deposition or hearing. Mediation typically costs less because the focus is on resolution, not battle. In litigation, the court requires certain documents to be filed and information exchanged. This can, and often does, increase the cost incredibly. In mediation, the parties can work together to gather the necessary information and can determine the best use of resources. The cost is much more predictable and is to a much larger degree within the control of the parties.
- Maintain Your Privacy: Divorce mediation is a private process, unlike litigation which plays out in a public courtroom with public documents. Many of the documents of litigated divorce, including the pleadings, remain in the custody of the court long after the case is resolved, and are available for public inspection indefinitely. Mediation allows you a confidential forum to determine how these issues impact your family and what that will mean as you move ahead. In mediation, issues of infidelity, addiction, mental health, sexual orientation and other personal issues are not used as weapons or listed in court documents so as to harm the other person or cause embarrassment. In cases where such an issue is part of the conflict, we approach it in a constructive manner that focuses on resolution, not attack. However, we also recognize that these factors are part of the story and we need to give the parties the room and the opportunity to address them when needed. This will mean different things to different parties, so we tailor the process to fit each individual’s needs. By working together though these issues both parties can find a way to be heard and respected.
- Faster Agreements: Litigated cases often take well over a year to get to a final hearing. Recently, the time has been extending even longer. Once you get to court, many parties wait weeks and sometimes even months to receive decisions from the court. With mediation, you determine how quickly to get started and how often you want to meet to resolve your case. Although there are many factors that determine how long your case will take, mediated cases are often resolved within 90 days.
- Your Own Timeline: Divorce mediation participants create their own timeline. The case can move at the pace that best suits your family. Litigation clients are subject to the timeline and appearance requirements of the court system.
- Preservation of Relationships: In mediation we will often ask clients to think about what they want the epilogue to their story to be. What do they want to be able to say about this process and transition in five years? For many, they want to be able to be at their children’s weddings and graduation without worrying about having to see their spouse. They don’t want their children to feel like they have to choose one parent over another. They want their children to continue to have two parents even though they are no longer married. For others, they want to do no more harm to those they love and they want to be proud of how they handled the process. They want to be able to come to a place of peace about the ending and to move forward. The vast majority of our clients, if given a chance to articulate these objectives will repeat all or some of those same goals. When clients are in litigation it is easy to lose sight of these goals because litigation often rewards aggressiveness and tenacity. If clients can try mediation first, they have a chance to preserve some sort of relationship with their ex-spouse. If mediation fails, as it sometimes does, the parties can always ask the judge to decide. But in our experience, litigation should be the last resort, not the first thing you do.