by permission of horsesmouth.com
November 16, 2001
For Hollywood royalty Tom Cruise and Nicole Kidman, using a mediator helped keep divorce details under wraps. Divorce mediation can save your clients time and money -- and help them avoid messy courtroom battles.
For years, Tom Cruise and Nicole Kidman appeared to enjoy a rock-solid marriage -- at least by Hollywood standards. Then, shortly after their 10th anniversary party, Tom filed for divorce. In an interview with Oprah, Nicole described the experience as "awful," claiming she couldn't believe it was happening. Tom contradicted her, informing People, "Nic knows exactly why we're getting a divorce." According to their publicists, the Cruise/Kidman divorce was agreed upon amicably. But the press hints otherwise.
Despite their recent sparring, the mega-stars agree on one issue: the well-being of their kids. Both Tom and Nicole want Isabella, 8, and Connor, 6, spared any of the heartache that could result from unfavorable publicity during this highly emotional time. And this interest in protecting the children is one reason the couple sought to settle their divorce agreement via a mediator rather than slugging it out in court. When might mediation prove appropriate for your own clients?
What Mediation Entails
Bypassing the traditional adversarial approach, mediation assumes that divorcing spouses want to cooperate in reaching an equitable resolution to a variety of issues, such as property division, child custody and support, and spousal support. Studies have shown that mediation is effective even when a great deal of animosity exists between spouses. Those seeking mediation generally have an overarching concern superseding their marital differences -- in Tom and Nicole's case, a mutual desire to protect their children.
Mediation entails both spouses meeting with a neutral party, who assists them in reaching an agreement. The purpose is not to save the marriage, but to work amicably toward a fair settlement. Attorneys may be present, but do not have to be. Unlike arbitration, mediation does not lead to a binding agreement; it does, however, provide an opportunity to hammer out divorce details in private, which means that court proceedings are quicker and less painful. According to various follow-up studies, couples who go through mediation are more likely to comply with divorce terms and less likely to re-open cases subsequently. Presumably, such couples feel they have more control over the outcome of divorce proceedings -- and less like court judgments are being forced upon them.
Mediation saves time and money. In the classic divorce, the wife talks to her attorney, who talks to the husband's attorney, who in turn talks to the husband. The husband responds to his attorney, who talks to the wife's attorney, who talks to the wife -- and so on. In mediation, the husband and wife talk directly to each other, saving time and -- with the help of the mediator -- ensuring more accurate communication. And paying a mediator for a few hours of efficient communication is clearly less expensive than paying two attorneys for a lengthy back-and-forth dialogue.
Mediation also achieves results. Studies have shown that mediation produces agreement in 50% to 80% of cases. Sure, it's not 100% effective, but it clearly benefits most couples. In the worst-case scenario, mediation fails -- and the spouses simply resort to the traditional adversarial approach.
Who Mediators Are
Divorce mediators have varying backgrounds. Some are former therapists, some former attorneys, and some financial planners who specialize in divorce (there's even a special certification for this: Certified Divorce Planner, or CDP). The ideal mediator demonstrates the following traits and abilities:
Sensitivity to the emotions of divorce and an understanding of how to help the spouses deal with them.
A knowledge of family law in the client's state and of what is usual and customary concerning property division and custody and support arrangements.
An aptitude for working with numbers and an understanding of the tax and estate planning impact of the various settlement options.
A problem-solving approach that enables him to reach the heart of key issues quickly and efficiently.
Given the differences in the background and capabilities of mediators, careful selection is important. In fact, choosing a mediator may be one of the first sticking points divorcing spouses face. To help clients undergoing a split, do some homework so that you can refer them to a good mediator.
This article presented with permission of www.horsesmouth.com, a member-only network of financial advisors.