Mediation allows separating and divorcing couples to take control of planning their own lives and to make informed, beneficial decisions about their future. Mediation is especially beneficial for parents who, though separating, will need to continue making joint decisions about their children, child custody, and child support well into the future.
The decision-making process learned in mediation can serve as a model for future communications. Also, mediated settlements have a consistently higher compliance rate because the divorcing couple has created and mutually agreed to their own terms. Here is a collection of frequently asked questions about divorce mediation.
What Does The Mediator Do?
A family law divorce mediator is a neutral third party specially trained to help couples with dispute resolution. The mediator is often a retired judge or commissioner but can be a divorce lawyer, or may not be a licensed attorney at all. The mediator helps resolve the issues in the couple's divorce by performing the following tasks:
- Facilitating the communication between the parties by making sure each party is given an uninterrupted time to speak
- Asking parties to restate or explain a point when necessary
- Asking questions to make communication clear
- Providing information about the legal system
- Describing how issues may be viewed by lawyers or judges
- Facilitating discussions on spousal support or child support
- Identifying alternatives for solving issues
- Referring the couple to third party experts for services, such as appraisals, when appropriate
How Does the Process Work?
The mediation process is flexible and can be adapted to the needs of the couple getting a divorce. Sometimes a couple in the middle of litigation may decide to try (or may be required by the court to try) mediation to resolve their case before going to trial. In such a case, the parties likely already have attorneys and the information they will need to mediate, and they may spend an entire day in mediation trying to resolve all their issues fully and finally.
Other couples may consult a mediator on their own to help them divorce without consulting with attorneys first. In such a case, the couple and mediator are likely to meet in a series of mediation sessions, usually one to two hours long. That process could look something like this:
First meeting: The couple and the mediator identify the issues in the divorce case that need to be discussed and the order in which they will be discussed. They then decide what information needs to be gathered and shared. Between the first and later sessions the couple gathers all relevant financial data, or, if necessary, the opinions of experts such as appraisers or accountants. These materials are treated with the same care and concern as they would see in an adversarial divorce process.
Further Meetings: Discussions revolve around how to compromise on the various issues in order to meet the needs of both parties. The mediator assists by providing information about the court system and common ways divorce issues are resolved in a divorce settlement.
The Agreement: When an agreement has been reached on all issues, the mediator drafts the agreement for review by each of the parties and their attorneys.
How do Divorce Court Documents Get Filed?
If the mediator is an attorney, the attorney can assist the parties in filing all papers with the court, including starting the dissolution of marriage action, preparing and filing the necessary disclosure documents, and preparing the agreement, judgment, and final papers to be filed with the court.
Will We Have to Appear in Court?
No court appearances are necessary by either party for mediation.
How Long Does Mediation Take?
The length of the mediation is determined by the complexity of the issues and ability of the individuals to be flexible as they negotiate a fair agreement. Every case is different, but the average case usually takes at least three to four two-hour mediation sessions, spread out over at least a month or two. More complex cases can take four to six months to complete.
Is Mediation Cheaper Than Using Lawyers to Handle a Divorce?
Many family law attorneys charge legal fees, such as a retainer fee of between $2,500 and $5,000 for average cases. They may also bill the client for services in addition to the time covered by the retainer. The retainer amount will be substantially more in complex cases, so the cost of mediation from beginning to end can be less than the combined retainer fees would be if the parties hired lawyers to handle the divorce.
Traditional divorce costs can run two to ten times higher than the mediation cost. Collaborative divorce, divorce regarding domestic violence, or other time-consuming concerns in divorce proceedings can all factor into the final cost.
Also, keep in mind that "cost" not only means dollars spent but also the emotional cost to the parties and their children who go through litigated divorces. Generally speaking, mediation greatly reduces the emotional cost of a divorce.
Will our Agreement be Enforceable?
Once an agreement has been signed, that agreement is enforceable. Usually, however, a judgment based on the agreement is prepared and filed with the court, and then it is just as enforceable as any other divorce judgment.
My Spouse is Very Powerful — How Can I Hope to Be Successful in Mediation?
The mediator will not allow one party to overpower the other in mediation. If one of the parties is unable to be effective during this process, the mediator may stop the mediation entirely or may choose to meet with the parties separately and relay communication between them to help them better manage their emotions and communicate about the issues more effectively. However, many persons who considered themselves to be the "weaker" of the two spouses have been quite effective in mediation.
Should I See a Lawyer During Mediation?
Mediation is not a substitute for the services of a qualified attorney. Both parties are encouraged to obtain independent legal advice during the mediation process, and to have their lawyer review the agreement before it is signed. Even when the mediator is a lawyer, they can't give either party legal advice.
What if My Case is Too Complicated for Mediation?
No case is too complicated to be settled using mediation. Parties in mediation frequently consult with outside experts such as accountants, appraisers, financial planners, and attorneys throughout the process.
What if We Can't Agree on All Issues?
It is fairly rare to agree on all issues right away, but even if that is the case, mediation is seldom wasted. An agreement can be prepared on all settled issues, and the parties can either litigate the remaining issues or take further time to think about them and come back to mediation.
We Don't Get Along Well — How Can We Possibly Mediate?
Although many mediating couples are amicable and work well in mediation, there are also many couples who are very emotional about the divorce and don't think they can negotiate face to face.
Part of every qualified mediator's training is assisting couples who have high emotions but who still would like to work things out peacefully. People do calm down and become effective mediation participants when they see that the process can work without adding to the high emotional and financial cost of divorce.
Have More Questions About Divorce Mediation? Get in Touch with an Attorney
There are a few options when it comes to getting divorced; divorce mediation is one of those options. However, every option doesn't work for every situation. It's a good idea to discuss your case with a divorce attorney if you have questions about divorce mediation, or you just want some guidance as you move through the divorce process.