Why Ben and Jen chose mediation

Ben Affleck and Jennifer Garner mediation

Ben and Jen: Breaking up is hard to do.

That headline should probably say, “why Ben and Jen probably chose mediation”. Without knowing the two parties or being involved personally, that’s all I can do. Yet as a practicing mediator for the past 25 years, it’s fairly obvious why a high-profile couple would choose mediation: control.

That answer might surprise those of you who thought money. While even couples worth a combined $115 million may not wish to spend more than they have to on attorneys, there will be legal fees whether they settle in court via litigation or privately in mediation.  But by taking the latter approach, Mr. Affleck and Ms. Garner can control the outcome of their divorce settlement.

That’s not to say either party will get exactly what he/she wants. Hopefully Mr. Affleck and Ms. Garner are working with their attorneys to prepare financial statements, parenting schedules and other matters of interest. Then, through a series of meetings, discussions and negotiations, the couple will agree on a settlement that both can live with—but it will based on what they want.

In litigation, the control belongs to the courts. Both parties will provide financial statements, but the amount of alimony (if there is any) will be figured out via a predetermined formula. The same will be true of child support and the parenting schedule. In terms of the division of property, a judge will also be the determining factor in who gets what and could even order the sale of a property that both parties desire.

Perhaps the largest benefit to Mr. Affleck and Ms. Garner is the flexibility granted by mediation, particularly as it pertains to the parenting schedule. With both parties working in show business, there are bound to be times when their work schedule will not allow for a typical visitation schedule (e.g. Mr. Affleck is shooting a film out of the country for an extended period).  Their parenting schedule can be as complex or as open-ended as they wish (e.g. Mr. Affleck can have visitation with the children the week before he leaves to shoot the film or even take them with him if Ms. Garner agrees). In litigation, the courts are more likely to want a set schedule and require the parties to appear in court for changes.

Privacy is another large consideration for high-profile and everyday divorces alike. Nobody wants to air their dirty laundry in public. Especially if there is a chance that dirty laundry will be on TMZ. Negotiations during mediation are done in private offices with just the couple and perhaps their attorneys present and conversations are confidential (as are financial records).

Of course, the final divorce settlement in mediation will be public record (as is the case in litigation). But when you consider the fanfare of a high-profile case in litigation where the media can be present inside and outside of the courtroom, it’s a night-and-day difference.

While that probably factored into the Afflecks’ decision for mediation, it most likely came down to this: in litigation, it’s about what the law says; in mediation; it’s about what you and your spouse want. Although a judge will have to approve a Divorce Agreement in mediation, most judges will accord both parties a lot of latitude in how they resolve their differences.  At the end of the day, most divorcing couples who can stand to be in the same room together can agree to control most of their destiny through mediation.