Part 9 of our 10 part series
As you have learned by now, one of the basic tenets of divorce mediation is that the parties are free to create agreements that work for them and their family. They are not asking the court to make decisions for them; that power remains in their hands. To reach agreements both parties submit proposals, counter-proposals, and counter-counter-proposals, etc., fine-tuning them into the terms that will eventually make up the Marital Settlement Agreement filed with the court.
Proposals made and tentative agreements reached in mediation are confidential and cannot be divulged in court should the parties end up appearing before a judge. (Please note that final agreements [MSA, stipulations, modifications, etc.] filed with the court are not confidential; they become part of the court record.) When couples are secure in the knowledge that anything said in mediation may not be “used against them” in court, it becomes easier to make offers and consider alternatives.
Often, the most creative solutions start with a proposal that at first glance seems impractical or unworkable but after open, free discussion is crafted into an agreement that could not have been obtained in court, where the judge does not have the freedom to issue orders outside of the court’s limited powers. Concerning the division of assets, for instance, generally, the court’s options do not extend beyond awarding half of the community property portion to each party. In mediation, the parties are free to create any solution that works for them, well outside the boundaries of a simple 50/50 division.
Divorce mediation allows for the time and luxury of exploring alternatives to traditional agreements that work for each unique family.