Mediation conducted prior to divorce is one of the most common and well-known types of mediation, and its role is to reach a divorce agreement that the parties will later approve in court, by consent. The process saves considerable time and money, and in cases where both parties are willing to compromise, it is definitely preferable to courtroom battles.
In the divorce process, the final outcome is a divorce agreement agreed upon by both spouses, concerning property, children, and their future relationships. A good mediator is one who can identify the needs of each party, build a respectful solution, and foresee future contingencies, providing sustainable solutions for years to come.
Mediation is regulated under Section 79G of the Courts Law, 5744-1984, and the Courts Regulations (Mediation), 5753-1993.
Mediation Before Divorce
The ironclad rule for successful mediation is the willingness and readiness of all parties involved, including a willingness to compromise and cooperate with the other side. Without such readiness, mediation is futile, and recourse to the court is necessary. A good and experienced mediator cannot reach agreements if the parties are not ready. If willingness exists, the mediator’s role is to find a viable solution acceptable to both sides.
Advantages of Mediation:
- Mediation is generally shorter in duration compared to legal proceedings.
- It usually involves lower costs.
- Meeting times are tailored to the parties’ preferences, unlike court where schedules are imposed.
- Agreements are reached by consent, reducing the likelihood of objections and non-compliance.
- It fosters respectful dialogue and communication between conflicting parties, avoiding the adversarial nature of court decisions.
- If the parties are unable to reach an understanding, they can always turn to the court, but it is advisable to exhaust the mediation process first.
- The mediation process is private and regulated by confidentiality and secrecy agreements.
- The parties have full control over the nature and details of the agreement, without a third party imposing it on them.
- Support is also provided after reaching a mutual agreement, for issues that arise over time and require solutions.
Mediation Before Divorce
One of the troubling questions for couples deciding to divorce is the financial cost involved. It encompasses not only property division and the separation of assets, but also the economic struggle that can cost each side hundreds of thousands of shekels.
Court-free mediation, including case opening fees, attendance at hearings, meetings, and generally shared costs between the parties are typically conducted by a single mediator. Additionally, the time required for mediation is relatively short and limited compared to lengthy and expensive legal processes. Therefore, mediation is generally much cheaper than any legal process and usually ranges from a few thousand to about 20,000 shekels in total costs.
The mediation process includes several main parts:
- Initial meeting: The mediator explains the process and its purpose, and the parties commit to its proper management rules.
- Private meetings: The mediator may conduct private meetings with each party to empathize with their difficulties, unravel them, and create openness. The mediator understands the limits of each party’s perspective and needs, trying to find overlapping points.
- Joint meetings: Each party presents their conflict from their perspective in joint meetings.
- Presentation of possible solutions: Presenting possible solutions to end the conflict by mutual agreement in a way that is respectful and acceptable to both parties.
- Formulation of agreements and mediation agreement.
- Presentation of the agreement to the court, where it will be given the force of a court order.
In any case, if mediation fails, there is always recourse to the court. However, mediation should be attempted first.
Mediation is a private and orderly process, conducted with confidentiality and discretion. Control over the nature of the agreement and its details lies entirely with the parties, without a third party imposing it on them. Follow-up assistance is provided even after reaching a mutually agreed settlement, addressing issues that arise over time and requiring solutions.
Is Mediation Suitable for Everyone?
The answer is no. Mediation is suitable when both parties are willing to compromise and agree to settle. If each side remains entrenched without any ability to compromise, even a good mediator may not be able to assist. In such cases, the court is the appropriate venue.
It is important to note that mediation is a consensual process, unlike court proceedings where orders are imposed on the parties. The mediator is not a judge, and even if they are a lawyer, they do not act in that capacity during the process. In fact, mediators have no authority to make binding decisions. They are bound by confidentiality, neutrality, fairness, and impartiality.
The mediation process is informal. It is not bound by rules of evidence or legal procedures like courts, allowing for creative and alternative solutions that courts do not consider.
Can Statements Made in Mediation be Used in Court Later?
No. Everything said in mediation remains confidential and cannot be used as evidence or in any civil or other proceeding in court.
Mediation Duty Before Divorce
In July 2016, the “Law for Settlement Negotiations in Family Disputes, 5775-2014,” also known as the “Divorce Mediation Law,” came into effect, requiring couples deciding to divorce to undergo mediation before anything else.
The purpose of the law is to reduce litigation and prioritize the resolution of conflicts through agreement and peace. This process is free of charge, according to eligibility conditions, and in any case, the parties have the option to conduct private mediation instead, as long as it is proven.
During mediation, all court filings are suspended. It is conducted for free at the court’s assistance unit and includes four meetings. Lawyers can advise the parties but cannot participate, and a lawyer and social worker from the assistance unit will be present during the meetings.
The goal of the meetings is to help the couple understand the legal process, its economic and legal implications, and its impact on their joint children. Research has shown that children of divorce who engage in court battles suffer greatly and struggle to establish relationships in the future.
The meetings take place within 45 days of the initial request submitted to the court. Within 10 days after the fourth meeting, the spouses must inform whether they wish to continue mediation or proceed with litigation in court. The party who filed the initial request will be the one to file the lawsuit in that case.
Statistics indicate that the law has achieved its purpose. For example, in 2017, there was a decrease of about 60% in the number of divorce cases filed in rabbinical courts and civil courts.
Today, the market is flooded with various types of mediators and certificates. It is advisable to ensure that the mediator is also a practicing lawyer specializing in family and contract law, who considers the personal and legal aspects comprehensively and can provide solutions accordingly.
The divorce process involves many emotions, along with economic difficulties, personal adjustments to a new situation, and the prevention of future problems. Therefore, finding a sensitive and experienced mediator who is also a lawyer specializing in family and contract law is essential for finding comprehensive personal and family-oriented solutions.
Our office specializes in family law and mediation, and you can find mediators who are experienced lawyers happy to meet with you, advise you, and answer any questions.
Feel free to contact us via chat or call at: 055-9826594