Relationship Mediation: Releasing the Bow-tied Knot.


Is relationship mediation only for married couples?  When a married couple decides to separate, a pre-choreographed dance of legal formalities begins.  The law dictates what a separation agreement must cover before a court will a divorce decree.  The basic issues include dividing the assets, spousal support, if any, and child support and plans for parenting when there are children.  This legal process is not available to people who are part of domestic partnerships (which deal mainly with rights to health insurance coverage and hospital visitation) and couples who are in what I call undocumented domestic relationships (otherwise known as “living together”). Understanding the divorce mediation process for married couples can help shed light on what non-married (or “bow-tied”) couples can do.

In its plainest sense, marriage is a contractual relationship.  The vows taken during civil and religious ceremonies are the basic promises that married couples make to each other.  Matrimonial law fills in the rest.  A divorce means that the couple dissolves one contract and negotiates a new one.  Matrimonial law dictates the minimum of what must be covered in the new contract.  However, to a large extent, the law does not dictate how the decisions must be made or what the results must be.  As John M. Haynes, author of The Fundamentals of Family Mediation, puts it, “[o]ne of the hallmarks of a free society is the right to enter into contract. . . . Spouses have the right to enter into a contract, even thought the contract may not provide the same terms that a local judge would incorporate into his award”. (p93).  So, unless the agreement is unconscionable (meaning overwhelmingly unfair) or otherwise legally unenforceable, as long as the basic issues are addressed, divorcing couples are free to decide what the content of their agreement will be.

Bow-tied couples share many of the issues that married couples do.  They may have moved in together and both signed the lease.  They may share children in common or a pet who is like a child.  They may own property together or be in business together.  In other words, while they themselves are not legally bound, they might share legal obligations that bind them still.  Yet they do not have the protections of matrimonial law that, for example, allow a judge to order assets to be redistributed to create equity. Mediation is especially helpful to bowtied couples.

Both married and bow-tied couples can benefit from mediation.  The mediation process recognizes that the couple, not a judge, has the best information about what a good settlement is for them.  A mediator will guide the couple through a process of addressing each of the issues that exist.  These basically will be dividing property and caring for children if there are any.  For couples that have been together for many years, if one person has come to depend on the other financially, there is also room to discuss a plan for maintenance.  A maintenance plan can provide for the dependent partner to find ways to become independent.  This process allows couples to discuss and negotiate each detail themselves.

This process differs significantly from litigation.  For one, in mediation, disclosure happens simultaneously.  Rather than sending demands for information to each other through third parties who are in fight mode themselves, the couple will generally sit in the same room with a mediator who helps the couple to stay in negotiation mode.  This allows the couple time and space to think rationally and create the best deal possible.

Another difference is the potential for maximizing benefits.  When the partners are not in fight mode, their perspective changes from a winner-take-all position to one of maximizing benefits.  Being the winner can be a tantalizing goal.  But the costs of waging a winner-take-all war might so deplete the resources available that even the “winner” ends up with nothing.  Some sources estimate that the average contested divorce costs $40,000 – $180,000 in legal fees.  Mediation averages $4,000.00 to $6,000.00.  If a couple splits the bill, the whole process can be done for as little as $2000.00 per person.  Just think of what a couple can do with the $174,000.00 they have saved in mediation.  That is an excellent example of what maximizing benefits means.

A third difference is time.  A contested divorce may take two to six years (and more) to litigate.  A mediated divorce is generally finalized within three to six months. This can make a significant difference for everyone’s well-being.  If time is money, add that chunk of change to the cash savings.

Whether you are legally married, or part of a formalized or undocumented domestic partnership, mediation can help you to focus on negotiating an agreement that really works for you.