In divorce mediation, you and your spouse meet with a trained, neutral mediator to discuss and resolve the issues in your divorce. Mediation sessions often take place in an informal office setting, but you might also be able to go through your mediation online.
A mediator can help you reach agreement on the issues you and your spouse need to resolve in order to finalize your divorce, such as child custody, child support, and property division. Mediators don’t make decisions or offer legal advice, but rather serve as facilitators to help spouses figure out what’s best for their situation. When spouses reach agreement through mediation, most mediators will draft (and possibly file with the court) a divorce settlement agreement.
Why Choose to Mediate Your Divorce?
Although judges often order divorcing couples to participate in mediation before going to trial, you have the option of mediating on your own—either before you file for divorce or at any time after. Mediating your divorce has a lot of advantages over litigating it (fighting it out in court).
• Cost. Mediation is much less expensive than a trial.
• Settling the case. Most mediations end in settlement of all of the issues in the divorce.
• Confidentiality. Mediation is confidential, with no public record of what goes on in your sessions.
• Freedom. Mediation allows you to arrive at a resolution based on your own ideas of what is fair in your situation, rather than having a solution imposed upon you based on rigid and impersonal legal principles.
• Advice still available. You can go to mediation and still choose to have a lawyer give you legal advice.
• Control. You and your spouse not the court—control the process.
• Communication. The mediation process encourages communication between you and your spouse, helping you avoid future conflicts.
Successful mediation makes the rest of your divorce easier: Because you’ve done all the hard work of hammering out the details in the mediation, you can file an “uncontested” divorce. Uncontested divorces are usually less expensive and faster than litigated divorces (divorces where the couple battles in court). With an uncontested divorce, you’ll save money on attorneys’ fees and the costs of going to trial. Also, many courts fast-track uncontested cases because everything has been worked out in advance, meaning that a judge will be able to finalize your divorce faster than if you’d gone to trial.
Who Should (and Shouldn’t) Consider Divorce Mediation
Mediation can work for many if not most divorcing couples, even ones who have hard feelings and lots of issues to resolve. While mediation is worth trying for most pairs, not all of them belong in mediation. Mediation might not be for you if:
• You have experienced domestic abuse or fear for your or your children’s safety. If you are currently experiencing or recently experienced domestic violence or the threat of violence, mediation isn’t for you—you should seek assistance from a lawyer or other qualified source. If there was abuse in the relationship but it was some time ago, you should weigh the pros and cons of mediating carefully. Depending on the circumstances, some who have been abused might find it empowering to meet on the level playing field of a mediation session. Also, most mediators will take precautions to ensure that mediation occurs in safe conditions (for example, by meeting with the spouses separately). Others who have been abused, however, could reasonably find it traumatic to have to mediate or might feel the power or intimidation dynamics are too great—they might choose to have a lawyer do their negotiating for them. Also, some mediators won’t take cases that involve domestic violence.
• Your spouse has a history of being deceitful or untrustworthy. If you suspect that your spouse is hiding assets, wasting funds, or lying, mediation probably isn’t worth your time. You won’t be able to successfully negotiate unless both spouses are truthful, make full disclosures, and play by the rules.
• You suspect your spouse wants to delay the proceedings. Because the mediator can’t order either of you to do anything, a person who wants to delay the proceedings or avoid paying support can abuse the process by agreeing to mediation and then stalling the process.
• One of you is claiming fault or has hired a lawyer. When a spouse is claiming that the other is legally at fault for ending the marriage (a claim you can’t make in all states), a successful mediation is less likely but not impossible. If your spouse has already hired a lawyer, you should strongly consider hiring one, too. Your lawyer will help you decide if participating in mediation is worth it based on the facts of your situation.
For divorces without those kinds of circumstances, divorce mediation can be a great option. It’s especially effective when both people show up open to compromise. Don’t reject mediation just because you and your spouse see a particular issue very differently—in other words, don’t give up before you’ve begun. Mediation is a powerful process, and many cases that seem impossible to resolve at the beginning end up in a settlement.
The Divorce Mediation Process
Although every mediator will have their own style, the general process of mediation is pretty consistent.
Before Mediation
Before the mediation, you might speak with the mediator or an assistant and provide background information about your marriage, your family, and the issues in your divorce. Or your mediator might have you fill out a questionnaire. The mediator might also ask you to write up a “mediation statement” outlining your basic information and the divorce-related issues you think need to be resolved. The mediator might also ask you to sign an agreement that says that you’ll keep what’s said in the mediation confidential and that you understand that the mediator can’t disclose any of what goes on in your session in court.
During Mediation
Unless you do online mediation, mediation sessions are usually held in a conference room or comfortable office. Some mediators meet with everyone in the same room for the entire mediation, while others might break the spouses out into separate rooms for private discussions. For couples who have attorneys with them at mediation, the mediator might ask to meet privately with both sides before beginning the session.
After the mediator takes care of housekeeping issues such as the agenda for the session, you’ll probably get a chance to make a short statement about your situation, as will your spouse. After you’ve each had a chance to speak, the mediator might ask some questions to clarify or get more information. Your mediator might repeat or summarize your points to confirm that they understand what you’re trying to say. The next step will be to figure out what issues you and your spouse really agree and don’t agree on.
The two most important things you can do to reach an agreement are to:
• be open to compromise and
• listen to (and try to understand) your spouse’s point of view.
Understanding your spouse’s position doesn’t mean you have to agree with it. But it’s possible that, once you’ve listened closely to your spouse’s concerns, you’ll have new ideas about how to resolve disagreements.
Completing the Agreement
If you finish negotiations and resolve some or all of your divorce-related issues, the mediator will write an agreement and, in many cases, a parenting schedule or parenting plan. Your settlement agreement will include only the topics that you resolved during mediation. (If you aren’t able to agree on all the topics, you’ll have to either agree on the unresolved issues later or ask a court to decide them after a court hearing.) Some mediators will help you file divorce your paperwork with the court; others won’t. (You’ll want to ask potential mediators about the scope of the services they provide.)
If the court approves your settlement agreement, the agreement will become part of the final divorce decree. You can then enforce the terms of the settlement agreement just as you would any other order from a court.
How to Get Started With Divorce Mediation
Unless a judge orders you and your spouse to attempt mediation, divorce mediation is voluntary. That means you and your spouse will have to agree to mediate. If your spouse is on board, your next step is to find a knowledgeable, skilled divorce mediator.
When a judge orders mediation, you meet with a court-appointed mediator or, if the court allows it, a private mediator of your own choosing. If you’re trying mediation on your own, though, you and your spouse will have to find a mediator you both agree to. One way to possibly avoid argument over the choice of mediator is to research potential mediators on your own and pick three that you’d be willing to hire. Then you could present the list to your spouse and let them make the final choice.
Personal recommendations are a great way to find qualified mediators. For example, you could ask a marriage counselor, a lawyer, or friends who’ve been through a divorce for referrals. Other sources for mediator referrals include:
• Online mediation services. If you’re thinking of mediating your divorce online, finding a mediator is as easy as deciding on a service provider.
• Your local courthouse. The court clerk might have a list of court-appointed mediators who have practices of their own and are willing to take on private clients.
• Your state court’s administration office. The office that oversees all the courts in your state might have a list of approved mediators. Check your state judiciary’s website or give the office a call.
• Your state or county bar association. The “bar” is a professional organization of lawyers. Your state or county bar association might maintain a list of qualified mediators.
If you make a list of potential mediators, you’ll want to research each person’s experience and specialty. At a minimum, you should make sure that they are experienced in divorce mediation (and if you have children, cases involving child custody and support). Mediators can have a variety of backgrounds—for example, they can be lawyers, CPAs (certified public accountants), social workers, or other people with specialized training. The best mediator for your divorce will have experience helping spouses who face issues similar to the ones you and your spouse are dealing with. Many mediators will agree to meet with you in person or on the phone to explain their process and answer any general questions you have.
The Pros of Divorce Mediation
If you’re not able to do a DIY divorce because you and your spouse have unresolved issues or you just need some help with the paperwork, trying mediation before putting your case in the hands of lawyers has many advantages.
1. Help Navigating the Issues
When you and your spouse are in agreement, you have options for divorcing quickly and cheaply including using an online divorce service. But if you and your spouse have issues you can’t agree on, most online divorce services won’t work for your case. Also, the more complex your situation is—for example, if you have a lot of assets or a child with special needs—the more likely it is that you and your spouse will need some guidance resolving the issues. A knowledgeable mediator can alert you to the details you need to work out, lay out possible solutions that have worked for other couples, and help you complete the paperwork.
2. More Control Over the Outcome
To a large degree, mediation places your future in your own hands, rather than leaving it up to a judge to decide what happens to you, your children, and your assets. No one is as familiar with your situation as you and your spouse. Mediation can help you determine the outcome of your marital split on your own terms. Judges typically have big caseloads, with only a limited amount of time to consider each situation that comes before them. With mediation, you have the opportunity to really dive into the issues and craft creative solutions. For example, through mediation, a couple might come up with a specifically tailored situation where the pair keeps the family house until the kids are out of school, or the kids live in the house and the parents move in and out.
3. Faster Resolution of Your Divorce
Another benefit of mediation relates to time. When you hire lawyers and head to court, you might find yourself stuck in a process that moves with the speed of a glacier. Your case is one of thousands to be handled by one of a limited number of family court judges. Mediation, on the other hand, can proceed at whatever pace you, your spouse, and the mediator agree on.
4. Significant Cost Savings
If you file for divorce before resolving issues like custody, child support, distribution of marital property, and alimony (spousal support), it’s more likely that you’re going to need a lawyer to help you get the outcome you want. With so many issues needing to be resolved, it doesn’t take long for attorneys’ fees to add up. And the more arguing there is, the faster those bills accumulate. In most mediations, the spouses split the mediator’s fee. So whether the mediator is an attorney or another professional trained in mediation (such as an accountant or psychologist), the odds are you’ll be paying far less than if you had gone to court. And if the idea of representing yourself in a mediation seems daunting, you do have the option of hiring a lawyer to guide you through the process.
Note that there are situations where divorcing spouses might need other professionals to help with mediation. For instance, you might want an appraiser to assess the value of property or a psychologist or social worker to help work out child custody and visitation issues. But you’d likely need assistance from those same professionals if you were to bypass mediation and go directly to court. And, in all probability, you’d be paying even more for their services—you would have to pay not only to consult with them but also for them to testify in court or prepare a written report.
5. Control Over Your Schedule
When you go the court route, you have no control over scheduling the court will tell you when you must appear, with little regard for your personal schedule and prior commitments. And it’s not unusual to go to court for a hearing or a conference and wind up waiting hours before a judge is ready for you. With mediation, you and your spouse set the dates and times of meetings with the mediator. Some mediators even offer evening sessions, a major plus for spouses holding daytime jobs.
6. A Good Start to Your Post-Divorce Relationship
When the mediation ends, you and your spouse will likely be on better terms than if you’d spent a year or so battling each other in the courthouse. Court skirmishes tend to foster lingering hostility and resentment that becomes nearly impossible to overcome even once the divorce is finalized. The negative effects of that are obvious, both for you and your children. Mediation can also set the tone for a better relationship and make for smoother co-parenting down the road. In fact, a long-term study revealed that mediation resulted in parents who don’t live with their children seeing the children more often than those who took their divorce to court.
The Cons of Divorce Mediation
As productive as divorce mediation can be, it might not work for everyone. Consider these potential cons.
1. You Won’t Have Someone Negotiating for You
For people who are comfortable discussing and negotiating legal matters without consulting an attorney, mediation is a great option. Although qualified divorce mediators know the relevant law and can draft a settlement recording what you and your spouse agree on, they cannot give you legal advice. (Many qualified divorce mediators aren’t lawyers—they can be all kinds of professionals, such as therapists, social workers, and psychologists.)
Some mediators allow attorneys to attend mediation. Others, though, discourage having a lawyer present especially when only one spouse will be represented—because they’re concerned the presence of a lawyer will create an imbalance in the negotiations. And when both spouses bring attorneys, the atmosphere can seem combative. If you want to proceed with mediation but also want to get legal advice, consider consulting with an attorney outside of the mediation sessions. You could do this after each session, or at the end of the process.
2. Mediation Is More Expensive Than Do-It-Yourself Divorce
If you’re looking to keep your expenses to a minimum, keep in mind the cost of mediation compared to a DIY divorce. But in a DIY divorce, you’ll have to navigate the divorce process without any help, meaning you’ll have to familiarize yourself with court rules and procedures. And unless you’re in total agreement with your spouse and your divorce involves nothing more than ending the marriage, you could end up unhappy with the DIY settlement. If you compromise just for the sake of compromise, you could agree to something you end up regretting. For example, you could make a decision about the division of a sizable pension or real estate—or settle on an alimony payment—and then learn you misjudged the legal or financial consequences.
3. Mediation Isn’t Suitable for Couples With an Imbalance of Power
A successful mediation depends on a level playing field. Mediation can fail if either spouse has the upper hand in one form or another. For example, a spouse who bullies and is used to “winning” might never agree to settle. Or a spouse who has experienced domestic violence might be too afraid to speak openly in a mediation session. (Ongoing domestic violence and other dangerous situations basically rule out mediation and mean that the potential or actual victim needs help from a professional.) Likewise, mediation is less likely to be successful when a spouse has a history of being deceitful or untrustworthy. This is especially true when a spouse is suspected of hiding assets or wasting funds. You can’t reach a meaningful settlement unless both spouses are truthful about all issues involved, including everything they own. Also, if one spouse is legally claiming that the divorce is the other spouse’s fault or has already hired a lawyer, then the other spouse should normally have an attorney.
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