Divorce Mediation - Overview

Mediation employs a neutral third-party mediator who facilitates the resolution of a dispute. Mediators help the parties explore options and encourage the parties to work together. The mediator fosters communication, promotes understanding, and focuses the parties on their interests. This creative problem-solving enables the parties to reach their own agreement.

Divorcing couples have to file a lawsuit to dissolve a marriage. However, following the traditional litigation path is no longer necessary to work out the divorce terms. Today, many couples are turning to mediation to resolve their disputes.

The couple negotiates the terms of their divorce, not their lawyers and a judge. The mediation process puts decision-making control in the hands of the divorcing spouses. Mediation is also cost-effective, and you can avoid going to family court.

Below explains what divorce mediation is and how it's conducted.

Goals of Divorce Mediation

Whether mediation is agreed to by the parties or court-ordered, the goal of the mediation process in divorce is to:

  • Avoid the expense and trauma that often go with litigation
  • Minimize hostility and post-divorce controversy.

Why Resolve a Divorce Through Mediation?

Divorcing couples are often frustrated with the costs and delays of the judicial system. They want other options. The courts have recognized the importance of developing alternative dispute resolution methods. Many wish to handle disputes outside the courtroom. Court-related mediation programs have increased in popularity around the country.

Almost every state requires mediation of child custody disputes. Many state court systems now provide more alternative dispute resolution options for many issues. Today, mediation is the predominant form of dispute resolution for divorcing couples.

Benefits of Mediation in Divorce

Mediation works by enlisting a neutral mediator who facilitates communication between parties. The mediator's job is to promote compromise and understanding to reach a fair settlement. Mediation is particularly suited to divorces and other family law proceedings when there is likely a continuing relationship between the parties, like having minor children.

Many divorcing couples find mediation allows them to avoid the high financial and emotional costs of a litigated divorce. Because settlement is generally quicker, mediation costs less than the traditional divorce process. And you can save a lot in attorney fees.

Couples can learn communication skills to help them resolve future conflicts in mediation. This can be helpful when the couple must co-parent and continue to resolve issues.

Mediation allows couples to avoid the risks of trial. It protects their confidentiality and decreases stressful conflict. Mediation may also protect children from the pain of parental conflict.

Because the parties work to create their own agreements, divorcing couples often find greater satisfaction in the result. The parties are more likely to follow an agreement they have made than one imposed by a judge after a trial.

The Divorce Mediation Process

Divorce cases may get referred to mediation by the court. The parties may also agree to mediation in writing. If the court refers a case for mediation, it notifies the parties. Usually, the parties can object to mediation if there is a reasonable basis, such as domestic violence.

The divorcing couple works together on a parenting plan. They will decide on child custody, parenting time, and child support. They will address any need for spousal support or alimony and what amount.

The couple also goes through the property division aspects of divorce. This includes real estate, retirement accounts, and financial accounts. The mediator will work with the parties to address all divorce aspects.

Mediated divorce follows these general steps:

Finding a Mediator

Once you decide to mediate your divorce, it is necessary to find a mediator. Many counties have community-based or court-annexed mediation centers. If court-ordered, the court may appoint a mediator or will allow the parties to agree on a qualified mediator. Both lawyers and non-lawyers serve as mediators.

The fees charged vary from mediator to mediator and from case to case. Fees can be charged hourly, by the day, or half-day.

Mediators do not determine who is right or wrong. They do not make any decisions or recommendations. Instead, they help the parties reach a solution that works for them. Parties should seek mediators with mediation training, experience, and specific knowledge of family law. It's also important to consider the mediator's style and mediation philosophy.

Most state courts have a roster of qualified family law mediators. If you have a family law attorney, they may be able to recommend mediators for you. You can also search Academy of Professional Family Mediators for a mediator near you.

Remember that the mediator is neutral and cannot provide legal advice or tell you what you should do. It would be helpful to consult with a divorce or family law attorney beforehand if you have questions and want to learn more about what you can expect.

Mediation Preparation: "General Caucus"

Mediation preparation is often limited, as there is no formal discovery. You will want to collect any relevant documents, such as financial statements. Your mediator should tell both parties what will be needed for the mediation process.

Mediation begins with a "general caucus" where the parties and the mediator meet in the same room. The mediator establishes the ground rules in an "agreement to mediate." In court-mandated mediation, the court order often contains or refers to the "rules of mediation." One of the most important mediation rules is the requirement for confidentiality.

All matters disclosed or occurring during mediation, including any records made are confidential. They cannot be disclosed to anyone unless the parties agree. Additionally, state law may require that the mediator maintain confidentiality.

Opening Statements and "Private Caucuses"

Mediation may begin with a general caucus. After covering the mediation rules, the mediator will ensure any necessary agreements are signed. The mediator then explains the mediation process. The parties may then make opening statements to identify issues and clarify perceptions. Many mediators will encourage the parties to begin a conversation during the general caucus.

If the parties are hostile or emotional, the mediator will separate the parties. The mediator will shuttle back and forth between them in "private caucuses." Some mediators forego the general caucus. This is particularly true if there is animosity between the parties. Instead, they will conduct the mediation with the parties in separate private caucuses.

A private caucus is a conference between the mediator and one party without the other party. The mediator passes offers and demands between the parties. Conversations between a party and the mediator during a private caucus are confidential unless a party allows the mediator to disclose information.

Reaching an Agreement... Or Not

The parties in a mediation are not required to reach an agreement, and sometimes they don't. Whether the case settles or not, the mediator may meet with the parties together at the end of the session. The mediator will likely encourage the parties to attend another mediation session.

If the case does settle, the mediator drafts a settlement agreement or memorandum of understanding. This document will detail the agreement. A written settlement agreement is a contract between the parties. It can be enforceable in the same manner as any other written contract when signed by both parties.

Generally, there's no record of the mediation session. The discussions held during the private mediation are confidential. They cannot be used as evidence should the couple choose to litigate their divorce.

The memorandum of understanding may be formalized into a marital settlement agreement. Either document gets signed and filed with the court.

If a settlement is not reached, the parties may decide to litigate. Another option before resorting to a court trial is a collaborative divorce. In a collaborative divorce, the couples agree not to go to court. Instead, each party hires its own attorney who specializes in collaborative law. The couple works on their divorce settlement with the help of their attorneys.

Divorce Mediation Isn't for Everyone

While mediation is an excellent alternative approach, it may not work for everyone. It is not as effective when one party cannot express opinions without fear. If you have experienced domestic violence in your marriage and don't feel you can negotiate for yourself, mediation will not be a good choice. Also, mediation will fail when the parties refuse to compromise or mediate in good faith.

Some people are concerned that mediators may not handle the complex financial issues involved in their divorce. Discuss your financial information with a divorce attorney before obtaining mediation services.

Get Legal Help With Divorce Mediation

If you're considering a mediated divorce, you'll want to ensure you know your state's laws. Contact a skilled family law and divorce lawyer in your area who'll be familiar with mediation and settlement agreements. Only an attorney can give you legal advice and will work to get you the best possible outcome.

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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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