What is divorce mediation? Read our complete guide to understand what it is and whether it might be right for you.
Divorces are stressful and can often turn into long, contentious legal battles. One alternative to fighting it out in court, though, is divorce mediation.
Mediation is a collaborative process used to resolve many types of disputes, both personal and legal. Divorce mediation doesn’t work for everyone, but it does help many people avoid some of the headaches and costs associated with fighting things out in court.
So if you're wondering "what is divorce mediation" here are the key points to know about mediation generally as well as how the divorce mediation process works.
Divorce mediation is a collaborative, party-driven process that can save time, money, and stress when you're going through a divorce.
But every divorce is different, and the particular circumstances of a divorcing couple will dictate whether divorce mediation is a good alternative to a litigated divorce.
Mediation is a process in which a neutral third party helps the parties try to reach an agreement of their own making. Mediation is often referred to as a “party-driven process” because the outcome depends on the will of the parties. Unlike in arbitration, the mediator does not decide the issues for the parties. The mediator simply steers the conversation and tries to help the parties reach an agreement on their own terms.
The mediator may or may not be an attorney. Additionally, parties may attend by themselves or bring attorneys with them.
Parties may choose to try mediation, or the judge may order them to try it if a case has already been filed with the court. Regardless of whether the parties enter mediation because of a judge’s order or their own choice, mediation is an out-of-court process. (That is, in all likelihood, mediation sessions take place somewhere besides the courthouse).
As mentioned, mediation agreements can be binding and enforceable. But again, an agreement is only reached through the parties’ consent.
Now we’ve covered mediation generally, but what is mediation in divorce? And how does divorce mediation work?
Divorce mediation brings the party-driven mediation process to divorce proceedings and can be an appealing alternative to a litigated divorce.
Whether it be alimony, who gets to live in the family home, child custody, or child support, the divorce process involves a lot of emotionally charged issues that can be difficult to work through.
Similar to mediation generally, a divorce mediator acts as a neutral third-party to help spouses work through these issues and form their own agreements, rather than resolving them through a contentious divorce process or giving a judge the final say.
If you are able to reach a marital settlement agreement, you and your spouse would submit that settlement agreement to the court for approval. Pending the court's approval, that agreement would become binding and enforceable.
The divorce mediation process unfolds in several key stages.
First, the mediator typically meets with both spouses to provide an outline of the mediation process and establish ground rules. Both spouses are given the opportunity to share their concerns, priorities, and desired outcomes from the process.
Next, the divorce mediator guides the discussion to identify and explore the issues that need resolution. The mediator facilitates communication and aims to help the spouses work together to explore potential solutions and negotiate mutually agreeable terms. Note that the mediator may facilitate group discussions, choose to have one-on-one conversations with each party, or use a combination of group and private discussions.
If agreements are reached on all pertinent issues, the divorce mediator drafts a formal written agreement that reflects the terms discussed and accepted by both parties. Each spouse, and their respective attorneys if applicable, get an opportunity to review the agreement.
Then, the parties present the mediated agreement to the court for approval. If approved, it becomes a legally binding court order.
There are numerous benefits to divorce mediation.
As we discuss in our overview of Family Law, the best solutions often occur when the parties reach an agreement for themselves. When that happens, it can save you time, money, and headache. And these benefits can be particularly pronounced when dealing with such important and emotional issues as arise during the divorce process.
Additionally, resolving your issues through divorce mediation also allows you and your spouse to control and shape the outcomes. At the other end of the spectrum, in a contentious, litigated divorce, you could put your issues before a judge and have them decide the issues for you.
Sometimes this is necessary, and that’s how many divorces unfold each year. But this means that someone else is making huge decisions about your life--whether relating to spousal support, child custody, or division of marital property--that you will be legally obligated to accept.
Practically speaking, divorce mediation may also give you more control over the schedule and timing of the process. You will need to coordinate your own schedule with your spouse, the divorce mediator, and perhaps your respective attorneys. But that is often still easier than having your schedule dictated by court dates.
How much does divorce mediation cost? The answer depends to a great extent on your particular circumstances, which makes it difficult to provide an exact estimate.
It is worth noting, though, that while there are costs involved in divorce mediation, a successful mediation can save divorcing couples far more money overall.
For instance, divorce mediators working for private mediation services charge either a flat rate or an hourly rate for their time. But the legal fees that divorcing spouses might pay to their respective attorneys could dwarf most mediators' fees if negotiations fail and you end up in a contentious legal battle.
And keep in mind that there could be free or low-cost mediation services available to you. Court-sponsored mediation programs are typically less expensive than private mediation services. It may also be worth checking for options in your area through resources such as the National Association for Community Mediation.
Here are some of the other things you might want to know if you’re considering mediation for your divorce.
Similar to any mediation, a divorce mediator acts as a neutral third party and help you and your spouse work through issues. The goal of divorce mediation is to allow you and your spouse to shape your own outcome rather than having a judge decide the issues for you, and to do so while saving some of the time, headache, and cost involved in a contentious divorce process.
As noted above, the neutral mediator generally does not decide any issues the way a judge or arbitrator would. Instead, a divorce mediator helps you and your spouse to reach your own agreements.
As with divorce cases generally, how long divorce mediation takes will depend on how complicated the issues involved are. Often, the divorce mediation process will unfold over 1-2 months and 3-4 mediation sessions. Each mediation session generally lasts an hour or two.
The process could take much shorter or much longer, depending on your circumstances. And of course, this is all subject to the parties’ continued buy-in to the process.
Remember, even if the mediator is an attorney, they cannot provide legal advice to either you or your spouse. The divorce mediator is there to be a neutral third party and help facilitate the conversation.
So in that sense, you should probably have a lawyer review any divorce settlement agreement before you sign it. And to a certain extent, the question of whether to hire a divorce lawyer turns on the same factors whether you’re attempting mediation or not:
Yes, mediation is common in divorce cases.
Not everyone tries divorce mediation, and not everyone who tries it is successful, but many divorce cases each year involve mediation at some stage in the process.
So, what is divorce mediation, and how does divorce mediation work? It is a process that can help people resolve disputes of all types and avoid the time, cost, and headache involved in lengthy legal battles. These benefits can be particularly pronounced in the context of a divorce.
Divorce mediation is a voluntary process, though. The parties have the opportunity to shape the outcome of their dispute, but only if they can reach a settlement agreement together. The divorce mediator is a neutral third party and will not decide the issues for the parties.
Divorce mediation does not work for all couples, and sometimes contentious legal battles are unavoidable. The reality is that both the stakes and emotions can run high during the divorce process, and some things are worth fighting for.
But, for those who are able to engage in a more collaborative divorce process, the benefits of a successful mediation can be significant.
And remember, if you want legal assistance and someone to represent your interests, you should speak with a divorce lawyer regardless of whether the mediator is an attorney or not.
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