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.
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.
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.
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.
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
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.
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.
The cost of divorce mediation depends on a number of factors, such as:
• Using an attorney-mediator vs. non-attorney-mediator. Using an attorney-mediator will often cost you more than using a non-attorney. Attorney-mediators’ fees tend to be higher (typically $250 – $500 per hour, compared to $100 – $350 for a non-lawyer). But if you have a variety of issues to discuss, a mediator who’s a seasoned divorce attorney might be better able to lead you through the process and attain a successful result, as opposed to a mediator with a more restricted expertise, such as in financial matters or child custody disputes.
• The market rate. Like many of life’s expenses, the cost of mediation varies depending on where you live. Mediation often costs more if you live in a city or major metropolitan area.
• How the mediator charges for services. Some mediators bill by the hour, while others might charge per session. Some offer a flat fee for the entire process, although this might be based on a set number of sessions or a specific time period, with any additional sessions costing you more. Some mediators charge extra to draft or file court paperwork.
• The complexity of your divorce. If you and your spouse have worked out most of the issues in your divorce, you might be able to resolve the rest in a single session. On the other hand, if you haven’t resolved anything, you’ll probably need longer or more mediation sessions, which will cost more. Also, some topics take longer to resolve, such as how to divide complex assets (like a family business) and difficult custody disputes (for example, when one parent wants to move out of state).
• The need to consult with experts. You might need to hire experts to provide perspective on some issues. For example, an appraiser can help determine property values, or an actuary can assess the distributable amount of a pension. In cases involving child custody and visitation, you might want to bring in a psychologist to recommend a parenting plan that is in the best interests of your children. (It’s worth noting that if you took your case directly to court, you’d need to hire these same types of experts, plus you’d be paying them extra to provide testimony for the court.)
• The level of conflict. It’s crucial that divorcing spouses enter into mediation with a mindset of being willing to compromise and set aside any hostility—even if their only reason for doing so is to save money.
It’s common for divorcing spouses to split the mediator’s fee and any other mediation-related expenses. So even in a mediation with many issues to resolve, both spouses usually pay far less than they would if they decided to forgo mediation and use Ascent Law Firm attorneys to try to hammer out an agreement.
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