In some cultures, men can divorce their wives simply by repeating the words “I divorce thee” three times. But in our society, divorce trials can drag on for months or even years, often costing thousands of dollars and an incalculable amount of anguish.
To ease that pain, an alternative to litigation is rapidly gaining ground in St. Louis: mediation. “Mediation is a dispute resolution process in which the divorcing couple consult a specially trained, impartial third party who tells them what decisions they need to make and helps them generate options,” explains Marta Papa of Marta J. Papa, PC, Attorneys and Mediators. “The mediator then draws up the paperwork, which is signed off on by both parties. Only then does an attorney get involved to review the paperwork, draft the petition and file it.”
According to Papa, who’s both a family law attorney and a mediator with a post-graduate certificate in family therapy, the benefits are many. “It’s faster and less expensive than a litigated divorce, it usually takes about two months and costs between $2,500 and $3,000, including the filing fee,” she says. “Another plus is that the cost is split between the couple, instead of each of them hiring a separate attorney.” Few divorce cases actually go to trial; 95 percent are settled before the filing date. “But if the fighting drags on for six months or more, you can end up spending at least $20,000.”
The main decision-making areas confronting any divorcing couple are how to determine parenting responsibilities, how to divide current assets and debts, and how to handle future financial matters. “Mediation encourages improved communication because clients are making their own decisions face to face, instead of going through lawyers,” Papa says.
Who are the best candidates for mediation? “People who don’t want to fight and don’t want to use their kids as pawns, but just can’t work it out on their own at the kitchen table,” she says. “Mediation is a fair, safe way to come up with a plan that meets their needs and those of their children. There’s a trust factor in mediation that’s just not there in a litigated divorce. It’s healing, and it helps people move on with their lives.”
Not everyone agrees with Papa. “I don’t do mediation, and I think it’s usually a waste of time,” says Margo Green of Green Cordonnier and House, LLP. “You still have to pay a lawyer to file for divorce, even if your mediator is a lawyer. Why pay twice for something a good family law attorney can do once?” Green, who’s spent 27 years as a trial attorney, adds that there are often inaccuracies in mediated agreements. “All too often, I see agreements that have to be rewritten because they didn’t take into account current case law. I won’t file a mediated agreement unless I can independently verify all the assets and liabilities and revise the agreement so that it fairly represents my client’s best interests.”
Green concedes that mediation might be an option for a low-income couple who can’t afford a trial, or for people who haven’t been married long enough to accumulate substantial assets. She also thinks mediation may be more beneficial after the initial divorce is granted. “I think it works better a year or more down the line, in motions to modify the original decree, particularly with child custody,” she says. “But in the throes of a divorce, there’s usually too much anger to come to a reasonable long-term agreement. If two people are out for each other’s blood, they’ll get nowhere with mediation. On the other hand, if they want to dissolve their marriage in an amicable, realistic way, there’s no reason a mediator is needed, a family law attorney is sufficient.”
Part of the problem with mediation, Papa acknowledges, is that anyone can claim to be a mediator. “To avoid trouble, make sure you hire an experienced mediator from a court-approved list, which you can get by calling the city or county courthouse and asking for the domestic division,” she says. Requirements vary in different jurisdictions, but in St. Louis City and County and St. Charles County, mediators must be either an attorney or a mental health professional with a master’s degree. In addition, both attorneys and mental health professionals must have specific training in mediation.
In some states, mediation is either completely mandatory or required only for certain parenting issues. Missouri is just starting to catch up. “It’s mandatory in Kansas City, for example, but elsewhere in the state, it’s required only in certain jurisdictions,” Papa says.