Divorce Mediation FAQ

Mediation is helpful for divorcing parents that need to continue co-parenting. They need to continue to make joint decisions about their children. They need to deal with child custody and child support well into the future.

Divorce mediation is an alternative to traditional divorce litigation. Mediation allows separating and divorcing couples to take control of planning their own lives and make informed decisions about their future.

The parties, with their mediator, work together to come to a fair divorce agreement. This agreement and the necessary divorce paperwork are submitted for approval with the court. Often, the couple saves time and may never need to appear in court.

The process learned in mediation can serve as a model for future communications. Also, mediated settlements are often followed because the divorcing couple has created and agreed to their own terms. Here is a collection of frequently asked questions about divorce mediation.

  • What does the mediator do?
  • Is divorce mediation the same as arbitration?
  • How does the process work?
  • How do divorce court documents get filed?
  • Will we have to appear in court?
  • How long does mediation take?
  • Will our agreement be enforceable?
  • My spouse is very powerful — how can I be successful in mediation?
  • Should I see a lawyer during mediation?
  • What if my case is too complicated for mediation?
  • We don't get along well — how can we mediate?
  • Have more questions about divorce mediation? Get in touch with an attorney

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. Mediators aren't always licensed attorneys. They may train in divorce mediation services.

The mediator helps the couple come to a fair property division. They will help develop a reasonable parenting plan and custody agreement. The mediator also ensures the agreement represents both parties' rights.

The mediator helps resolve the issues in the couple's divorce by performing the following tasks:

  • Facilitates communication between the parties. Ensures sure each party has uninterrupted time to speak
  • Asks parties to restate or explain a point when necessary
  • Asks questions to make communication clear
  • Provides information about the legal system
  • Describes how lawyers or judges may view issues
  • Facilitates discussions on spousal support or child support
  • Ensures financial issues are fairly resolved, including alimony or spousal support
  • Discusses child support obligations and custody arrangements
  • Identifies alternatives for solving issues
  • Refers the couple to third-party experts for services, such as appraisals, when appropriate

Is Divorce Mediation the Same as Arbitration?

No. Mediation and arbitration are both forms of alternative dispute resolution. But they are different processes. A divorce mediator works with both parties to reach a fair agreement on the divorce.

Divorce arbitration is more like traditional divorce proceedings but more relaxed and informal. A private judge oversees the case, hears evidence from both parties, and will issue a ruling.

How Does the Process Work?

The mediation process is flexible and can adapt to the couple's needs. Sometimes a couple in the middle of litigation may try mediation to resolve their case before going to trial. Occasionally the couple may have court-ordered mediation.

In such cases, the parties likely already have attorneys and the information they need to mediate. They may spend an entire day in mediation to resolve all their issues.

Other couples may choose a private mediation to help them divorce without consulting with attorneys first. Here, the couple and mediator will likely meet in a series of mediation sessions. That process could look something like this:

First meeting: The couple and the mediator identify important issues in the divorce case and how to address them. They then decide what information they need and what the couple should share.

The couple gathers all relevant financial data between the first and later sessions. If necessary, they will consult experts such as appraisers or accountants. These materials are treated with the same care and concern as seen in an adversarial divorce process.

Further Meetings: Discussions revolve around how to compromise on various issues to meet the needs of both parties. The mediator assists by providing information about the court system. They will describe common ways divorce issues get resolved in a divorce settlement.

The Agreement: Once all issues are agreed upon, the mediator drafts the agreement for review by each party and their attorneys.

How Do Divorce Court Documents Get Filed?

If the mediator is an attorney, the attorney can aid the parties in filing all papers with the court. This includes starting the dissolution of marriage action.

The mediator prepares and files the necessary disclosure documents. They prepare the couple's agreement, judgment, and final papers, which are filed with the court. The court will review them before approving them.

Will We Have To Appear in Court?

No court appearances are necessary by either party for mediation. Once the parties reach a settlement and agree on it, the mediator will submit all the required papers to the court for approval.

How Long Does Mediation Take?

One advantage of divorce mediation is that it takes less time than a traditional divorce process. The length of the mediation depends on the complexity of the issues. It also depends on the 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 hourly for services besides the retainer. The retainer amount will be more in complex cases. The cost of mediation from beginning to end can be less than 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, divorces involving domestic violence, or other time-consuming concerns can factor into the final costs.

Remember that "cost" means dollars spent and the emotional cost to the parties and their children. Contested divorces can be contentious. Mediation reduces the emotional cost of a divorce and can take less time. The reduced time allows you and your children to adjust to your new life sooner.

Will Our Agreement be Enforceable?

A mediation agreement is enforceable once approved by the judge and signed. Usually, a judgment based on the agreement is prepared and filed with the court. A judge reviews the agreement and signs a court order finalizing the divorce. Then it is as enforceable as any other divorce judgment.

My Spouse Is Very Powerful — How Can I Be Successful in Mediation?

The mediator will not allow one party to overpower the other in mediation. If one of the parties cannot be effective during this process, the mediator can stop the mediation. They may meet with the parties separately and relay communication between them.

Mediation is inappropriate if you have experienced domestic violence or feel unsafe with your spouse. For mediation to work, both parties must be able to speak openly about their needs. Further, mediation work may anger or aggravate the abusive spouse. This can create a dangerous situation for the other spouse and children involved.

If you do not feel you can speak openly during the mediation process, this may not be the best option for your divorce. If you think your spouse conceals certain assets, consult a divorce attorney.

Should I See a Lawyer During Mediation?

A mediated divorce is not a substitute for the services of a qualified attorney. The mediator is not on one spouse's side and cannot give you advice about what is best for you.

Both divorcing spouses should get independent legal advice during the divorce mediation. Having your lawyer review the settlement agreement before signing it is a good idea. Even when the mediator is a lawyer, they can't advise either party. Only an attorney can give you legal advice.

What if My Case Is Too Complicated for Mediation?

Few types of cases are too complicated for mediation. Parties in mediation often consult with outside experts throughout the process. This may include accountants, appraisers, financial planners, and attorneys.

Mediation may not be the best option if your ex-spouse is hiding assets from you. You will need an attorney to help you navigate this situation.

What if We Can't Agree on All Issues?

It is rare to agree on all issues immediately, but even if that is the case, mediation is seldom wasted. An agreement can be prepared on the settled issues, and the parties can then litigate the remaining issues. They can also take more time to think about them and return to mediation. The mediator may even allow the parties to be in separate rooms to ease the stress.

We Don't Get Along Well — How Can We Mediate?

Many mediating couples are amicable and work well in mediation. Some couples are very emotional about the divorce and don't think they can negotiate face-to-face.

Part of every qualified mediator's training is helping couples who have high emotions. They help to work things out peacefully. People calm down and become effective mediation participants when they see that the process can work. The process may benefit the parties later by helping them learn how to communicate should other issues arise.

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. But, every option doesn't work for every situation. Discuss your case with a divorce attorney if you have questions about divorce mediation or want guidance as you move through the divorce process. Divorce is hard. Having an attorney on your side can help.

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Can I Solve This on My Own or Do I Need an Attorney?

  • You may not need an attorney for a simple divorce with uncontested issues
  • Legal advice is critical to protect your interests in a contested divorce
  • Divorce lawyers can help secure fair custody/visitation, support, and property division

An attorney is a skilled advocate during negotiations and court proceedings. Many attorneys offer free consultations.

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Don't Forget About Estate Planning

Divorce is an ideal time to review your beneficiary designations on life insurance, bank accounts, and retirement accounts. You need to change your estate planning forms to reflect any new choices about your personal representative and beneficiaries. You can change your power of attorney if you named your ex-spouse as your agent. Also, change your health care directive to remove them from making your health care decisions.

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