Oregon divorce mediation can be a smart alternative to litigation

The mediation route to divorce is sometimes cheaper, faster and more creative.

After a decade of marriage and three children, celebrity couple Ben Affleck and Jennifer Garner announced that they are ending their marriage and using the mediation process to negotiate a final settlement agreement, according to the Associated Press on June 30, 2015. Given that they are reportedly amicable, seek privacy and plan to co-parent their children, the confidentiality and creativity that mediation can provide makes sense.

But mediation is not just for celebrities: many spouses in all walks of life facing divorce may find mediation a good dispute resolution process providing an alternative to traditional negotiation and litigation.

In mediation, a neutral third party trained in dispute resolution assists parties to come to a negotiated, enforceable agreement that resolves their legal issues.

The mediator may use conflict resolution techniques to help the parties communicate and compromise, and to coach them through impasses. The mediator may also propose specific terms of agreement for consideration.

The parties may decide to hire a private mediator or in some Oregon courts, mediation resources may be available or divorce mediation may be required before a trial goes forward.

Oregon law specifically defines mediation as "a process in which a mediator assists and facilitates ... parties to a controversy in reaching a mutually acceptable resolution ... " out of which is produced a mediation agreement.

In divorce mediation, the mediator may have meetings with the spouses individually or together. Traditionally, legal counsel is not present at these meetings but could be if the parties consent. However, it is important that each party have an experienced divorce attorney to consult during mediation to understand the law and how it pertains to the particular issue, and for guidance and understanding before agreeing to any terms.

Each spouse's family lawyer should carefully review any mediation agreement before it is accepted and signed in order to advise his or her client of potential issues.

If mediation fails, the process will normally remain confidential and the matter will proceed to litigation where the judge in the divorce proceeding will consider evidence and decide the issues in the divorce.

In divorce, mediated issues could include property division, spousal support, child custody and support, and other issues the couple chooses to include like provisions for ongoing care of an adult disabled child or a son or daughter's college expenses.

In the traditional process, the divorcing couple tries to negotiate a settlement through their respective lawyers, communicating back and forth through counsel to see if agreement can be reached. If this kind of negotiation is not fruitful, the divorce issues are normally decided in a trial before the divorce judge, who does not know the family outside the courtroom.

But an alternative is for mediation to be tried at this point before resorting to litigation. Oregon law supports the use of mediation whenever possible to avoid litigation or instead of leaving the matter unresolved.

In addition to out-of-court privacy, mediation offers a process that is potentially cheaper, faster, smoother, and more amicable and predictable. The couple controls the mediation process and can produce an agreement that has input from each.

However, mediation may not be wise if the relationship is so broken down that working together is too stressful or unlikely to produce any agreement; or if there has been abuse, violence or intimidation between the spouses; or if one of them is controlling, intimidating, or has anger issues.

From the Portland Law Office of Todd R. Worthley, family lawyer Todd Worthley counsels clients in divorce and related matters.

Keywords: mediation, divorce, Oregon, litigation, marriage, negotiate, settlement, mediation agreement, spouse, dispute resolution, conflict resolution, trial, mediator, judge