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Divorce Mediation - Overview

Divorcing couples have to file a lawsuit to dissolve a marriage. However, it is no longer necessary to follow the traditional path of litigation in order to work out the terms of the divorce. Today, many couples are turning to mediation to resolve their disputes and negotiate the terms of their divorce, a process that avoids the courts.

Mediation is a process where an impartial third-party mediator facilitates the resolution of a dispute by promoting voluntary agreement by the parties. The mediator fosters communications, encourages understanding, focuses the parties on their interests, and seeks creative problem solving to enable the parties to reach their own agreement.

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

Goals of Divorce Mediation

Whether mediation is agreed to voluntarily by the parties or court-referred, the goals of the mediation process with respect to divorce are to:

  • Create an equitable, legally sound, and mutually acceptable divorce agreement;
  • Avoid the expense and trauma that often accompany litigation; and
  • Minimize hostility and post-dissolution controversy.

Why Resolve a Divorce Through Mediation?

Divorcing couples are frequently frustrated with the costs and delays associated with an overburdened, adversarial judicial system. These couples are finding ways to play a greater role in determining the details of their divorces. The court system has also recognized the importance of developing alternative methods of handling disputes outside of the courtroom. Court-related mediation programs have increased in popularity around the country.

Almost every state requires mediation of child custody disputes, and many state court systems provide services such as early conflict intervention, conciliator services, community dispute resolution centers, education seminars for divorcing couples, mediation, and settlement conferences. Today, mediation, either voluntary or court-mandated, is the predominant form of dispute resolution for divorcing couples.

Advantages to a Mediated Divorce

Mediation is a forum where a neutral mediator facilitates communication between parties to promote compromise, understanding, and settlement. Mediation is particularly suited to divorces and other family law proceedings because there is likely to be a continuing relationship between the parties, especially if minor children are involved. 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 litigation.

Mediation also allows couples to avoid the risks of trial, protects 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, couples who mediate their divorce settlement often find greater satisfaction than those who go to trial. The parties also tend to comply better with an agreement they have created themselves compared to an order imposed by a judge after a trial. In mediation, couples can learn skills to help them resolve future conflicts.

Divorce Mediation Isn't for Everyone

While most parties find mediation to be an excellent alternative to the traditional litigation approach to divorce, it may not work for everyone. It is not as effective when one party is unable to express opinions fully and without fear, or when the parties refuse to compromise or mediate in good faith. Some people are concerned that some mediators may be unable to handle the complex financial arrangements involved in some divorce agreements.

The Divorce Mediation Process

In many states, divorce cases are either referred to mediation by the court, or they end up in mediation based on the parties' written agreement. If the court refers a case for mediation, it notifies the parties. In most states, the parties then have an opportunity to object to mediation if there is a reasonable basis, such as domestic violence.

Mediation of a divorce follows these general steps:

Finding a Mediator

Once the decision to mediate is made, it is necessary to find a mediator. Many counties have community-based or court-annexed mediation centers. If the mediation is court-ordered, the court may appoint a mediator or will allow the parties to agree upon 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 may be charged on an hourly basis, or by the day or half-day. In general, mediators help the parties meet, explore options, and negotiate a mutual settlement to resolve their dispute. Mediators do not determine who is right or wrong or make any decisions. Instead, they help the parties reach a solution on their own 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.

The American Arbitration Association provides an online search tool for mediators in your area, and most state courts have a roster of qualified family law mediators.

Mediation Preparation: "General Caucus"

Mediation preparation is often limited, as there is no formal discovery. Frequently, 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 will often contain or refer to the "rules of mediation." One of the most important mediation rules is the requirement for confidentiality.

Typically, all matters disclosed or occurring during mediation, and any record made during the procedure, are confidential and generally may not be disclosed to anyone unless the parties agree to the disclosure. Additionally, state law may require that the mediator maintain confidentiality.

Opening Statements and "Private Caucuses"

After the mediator covers the rules of mediation and ensures that any necessary agreements to mediate are signed, the mediator explains the mediation process. The parties or their representative 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 overly emotional, the mediator will separate the parties and shuttle back and forth between them in "private caucuses." Some mediators forego the general caucus entirely, particularly if there is animosity between the parties, instead conducting the entire mediation with the parties in separate private caucuses.

A private caucus is a conference between the mediator and one party, without the other party being present. 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 authorizes the mediator to disclose information to the other side.

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 reaches an impasse, the mediator may meet with the parties together at the end of the session. If the case has neither settled nor reached an impasse, the mediator will likely encourage the parties to attend another mediation session.

If the case does settle, the mediator will urge the parties to sign a settlement to memorialize the agreement. A written settlement agreement is a contract between the parties, which is generally enforceable in the same manner as any other written contract. Generally, there's no record of the mediation session, and the only document produced is the settlement (or mediation) agreement.

If a settlement is not reached the parties may decide to litigate.

Get a Legal Help With Divorce Mediation

If you're considering mediation to negotiate the terms of your divorce, you'll want to make sure you know the laws in your state. You can do this by simply reaching out to a skilled divorce lawyer in your area who'll be familiar with mediation and settlement agreements, and can work to get you the best possible outcome.

You Don’t Have To Solve This on Your Own – Get a Lawyer’s Help

Meeting with a lawyer can help you understand your options and how to best protect your rights. Visit our attorney directory to find a lawyer near you who can help.

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Next Steps

Contact a qualified divorce attorney to make sure your rights are protected.

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