11 January 2021

Mediation: an amicable breakup is a choice

By Antoine de Werd

The marriage/relationship is over and yet you separate in an amicable manner?

That may sound like a contradiction, but it is not. It is possible through mediation, though you have to make a conscious choice. In this article, we discuss what is needed to achieve this and how it works.

Working with mediation on the best possible solution

Marriage (or relationship) is based on feeling. That feeling can turn into anger, sadness or impotence at the end of a marriage or relationship. As a result, the divorce can go badly. That is understandable, but it is better to prevent this from happening, if possible. This will allow you to talk to each other about the divorce and the agreements that need to be made.

In mediation, you choose to go through the divorce process together with your partner to reach agreements. Within mediation, you are not in opposition to each other, but instead you try to reach the best possible agreements together and with the help of the mediator. For example, you can make agreements about the children, the proper handling of the finances and sometimes also for the relationship after the marriage (the post marital relationship). The mediator is an independent party who guides and facilitates you in this.

Mediation is a choice that the partners consciously make.

Mediator or lawyer-mediator?

In practice, a distinction is often made between a lawyer and a mediator, as if they were two different professions. It doesn’t have to be. There are numerous lawyers who are also divorce mediators.

Lawyer-mediators are family lawyers who have completed a specialisation course to become a Family Lawyer Mediator. Just as with a “normal” mediator, a lawyer-mediator will act as a neutral party for your divorce and will act for both parties.

Engaging a lawyer-mediator has specific advantages:

  • In the Netherlands, a lawyer is always required to apply for divorce at the court. A lawyer-mediator has this authority, but a “normal” mediator does not. Such a mediator will therefore always have to seek the help of a lawyer.
  • Who other than a lawyer-mediator can properly assess whether the parties’ solutions for divorce are also legally feasible, correct and reasonable? They know the legal pitfalls and possibilities, the legal practice and know how judges could rule. This knowledge and experience will benefit you.
  • Lawyer-mediators are bound by strict professional rules. This guarantees their quality and the way of working.

How does mediation work?

It sounds so easy; make agreements with each other with the help of a mediator , but how does that actually work? Mediation is not just sitting around the table and talking. Commitment is necessary . Mediation takes place in a confidential atmosphere, guaranteed by a mediation agreement. Mediation uses the proven and internationally used Harvard method. The focus is on solution-oriented action and thinking in terms of (joint) interests and not positions.

Mediation uses four principles

1. Separate the person from the problem

Divorce is often a rollercoaster of emotions on which the partners have different points of view. Emotions stand in the way of a clear view and that makes finding solutions more difficult. In mediation, it is important that problems and pain points be discussed. Making emotions negotiable not only helps parties to understand the problem better by providing each other with insight, but it also helps to jointly arrive at a solution.

2. Concentrate on the interests and not the points of view

In addition to emotions, people often have their own points of view on how divorce should be arranged. If “the why” of positions are clarified, it may reveal that everyone’s interests are not so different from each other and that a compromise is easier to reach than expected. This involves finding common interests, for example if there are children and both want them to grow up as well as possible.

3. Create opportunities before making up your mind

Sometimes there are several possible solutions for a particular problem, and that is no different in the settlement of divorce. During the mediation process, you and your partner are asked to first think about possible solutions that strengthen the common interests and bring your individual interests closer together, without being bound by these solutions. By coming up with multiple solutions, you are more aware of the alternatives and it may become possible to combine solutions in order to arrive at the right solution with which everyone is satisfied.

4. The result must be based on an objective form

If you and your partner nevertheless stick to your own positions, the mediator will together with you search for an objective standard, such as the law, and then look for solutions that are appropriate.

What can you do if mediation suits you?

If you opt for mediation, you will have to choose a divorce lawyer-mediator / mediator in consultation with your partner. The mediator must then be approached. It is preferable to make this approach via e-mail (sending a copy to the other person), but you can also call. During an initial appointment with both of you – it is a requirement that you both attend (or join by video call)- the mediator will explain and submit a draft mediation agreement. After signing, agreements are made for the mediation discussions at the office of the divorce lawyer-mediator / mediator. On average, three to four meetings are needed to reach conclusive agreements. When that point has been reached, the divorce lawyer-mediator will draw up a divorce agreement, in which all agreements are included. Once signed by both parties, the divorce lawyer-mediator can file a joint petition for divorce with the court on their behalf. After about six weeks, the decision to declare the divorce will follow.

Confidentiality: being able to talk freely

An important aspect of mediation is the confidentiality that is agreed upon and forms part of the mediation agreement. It is agreed that nothing said during the mediation may be shared with third parties (also the court), so that it is possible to speak freely with each other. Agreements are only agreements if they have been recorded in a covenant signed by both.

Please contact us

GMW lawyers has one of the largest family law departments in the Netherlands, with experienced and expert lawyer-mediators.

If you have a question about this subject or if you want to divorce with a divorce lawyer-mediator, please contact me.

Antoine de Werd

Antoine de Werd

Lawyer and mediator / partner

Antoine de Werd, one of the co-founders of GMW lawyers, specialises in divorce law.

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