Nancy S. Caplan, Esquire

Nancy S. Caplan, Esquire
Bend Don't Break- Mediate!

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Tuesday, November 30, 2010

Mediation- Picking Your Own Poison

There are few positive choices to make in separation and divorce disputes. Each choice relating to finances or children is "negative," meaning that whatever choices are made mean less money or less time with one's children for both parties. Sure, one party may come out with more money than the other, or one might have more custodial time with the children than the other, but no matter what, both parties end up with less of everything upon separation and divorce.



This may all be self-evident, but it's important to keep it in mind specifically when deciding whether or not to mediate or to litigate your divorce matter. Why? Because if parties negotiate in a thoughtful and careful manner the parties can craft a divorce separation and marital settlement agreement which best suits the family in its new form. There may be no net-positive choices to be made, but isn't it better to pick one's own poison?


Settlements which occur through attorney-led negotiations are often made in an environment of stress which is being purposefully and at times relentlessly inflicted by the opposing counsel. Settlements which occur "on the courtroom steps" (meaning, on the day one is scheduled to have a hearing in court) are akin to having a gun to one's head. That's a pretty grim way to make huge life-impacting decisions. By contrast, separation and marital settlement agreements made in mediation are made in an environment of thoughtful consideration and debate, and with a front row seat to the opposite party's reactions. There is almost always a "cooling off" attorney review period to allow a party to digest what he or she is agreeing to. I think mediation participants ultimately more thoroughly understand their agreement because they negotiated it themselves.


So pick your own poison- you'll be glad you did. Only the parties themselves can know what they can and can't emotionally and financially handle, and only they will be living the lives dictated by their separation and property settlement agreements.








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