Divorce Mediation Basics
What is Divorce Mediation?
Divorce mediation is a term you may have heard, because more and more couples who are divorcing are choosing to reach an agreement through this process, rather than by going to court. If you are not familiar with mediation, you may wonder how it’s different from hiring a divorce attorney or law firm and going through the divorce process the old-fashioned way.
Today, divorce mediation is one of the most common ways for couples to reach a settlement. You and your spouse hire a neutral third party mediator to discuss your settlement options. Unlike a judge, the mediator does not make decisions for you, but helps to guide you and your spouse through divorce issues until you can reach an agreement.
If you are considering divorce, mediation is well worth a look for its many advantages over conventional litigation:
- Mediation is much less expensive than hiring attorneys to go to court
- Mediators can help you reach a settlement much faster
- Mediation protects your privacy, as nothing is discussed in open court and there is no public record
- Only you and your spouse can decide on the final agreement–it cannot be imposed on you from outside
- Mediation is effective at dispute resolution–Win-Win has a success rate of over 95 percent
- Mediation strategies can help you improve communication with your spouse and avoid future conflicts–especially important if there are children involved
However, there are rare cases where mediation isn’t the right choice. Since a mediator does not have the weight of the legal system behind them, they cannot force you or your spouse to do anything, such as hand over financial documents. A spouse who wants to hide assets or delay paying child support or spousal support may find it easier to manipulate the process. Every case is different, and the mediation process has been known to produce settlement agreements between spouses who entered it in very antagonistic mindsets. You will want to consider your individual circumstances, though, particularly if:
- The divorce is contentious. If the decision to divorce is not mutual, it will become much more difficult to settle your case.
- There’s a history of domestic violence, or you don’t feel safe voicing your concerns to your spouse. If you will be unable to stand up for yourself for any reason, hiring a divorce attorney to fight for you may be necessary.
- Your spouse is not forthcoming about finances such as bank accounts, investments, pensions, and similar. A mediator does not have the authority to order a spouse to disclose these assets.
- You will not be able to come to a co-parenting or custody agreement. Determining child custody can be one of the hardest parts of the divorce process, but if there is any chance of compromise, it’s to your advantage to avoid the family law system.
Choosing a Divorce Mediator
If you and your spouse have chosen to reach an agreement through mediation, you will first need to agree on a mediator and select the professional or company best equipped to deal with your case and guide it to a satisfactory resolution. You can get suggestions from your local bar association, legal aid office, mediation organizations and directories, therapists, financial advisers. or others who you trust. You will want to find a mediator who:
- Has a proven record of success in helping spouses reach a divorce settlement
- Has a family law attorney on staff
- Establishes a rapport with you and your spouse–an attorney client relationship is important
- Is trained in social work, psychology, or another aspect of conflict resolution
- Make sure you and your spouse agree on the mediator you choose, as you will be working closely with them when you become clients
The Mediation Process
Divorce mediation begins when you call to schedule your free consultation. We will schedule a time for both spouses to meet in a conference room at our office, where will will further explain the details of the process, set ground rules, answer your questions, and explain what each of you should gather to bring to the next session.
In each mediation session that follows, we will systematically address every aspect of your divorce or separation: property division, child custody, visitation, and support, spousal support or alimony, distribution, and so on. Every situation is unique, and some couples may find the decision making process longer in regards to some issues than others, but in the vast majority of divorce cases, clients are able to reach an accord. Your mediator can help you make decisions and offer legal advice, but all outcomes–property, children, support–are in the hands of you and your spouse.
You may worry you and your spouse cannot agree and will have no choice but to go to court. However, except in cases of domestic violence or other extenuating circumstances, we highly suggest you avoid litigation if there is any way around it. Litigation is not only lengthy and expensive, but it can be extremely stressful for both spouses and their children. Win-Win has over a 95 percent success rate in helping divorce cases reach a settlement agreement. Make sure you’ve truly exhausted your options before dragging your children and family through litigation and a court battle and leaving all decisions about your case in the hands of a judge.
The most important thing spouses can do is enter the mediation process with an open mind, a willingness to listen, and the understanding that you will need to compromise to settle your case.
What is collaborative divorce and how is it different from divorce mediation? Collaborative divorce is similar to mediation in that spouses avoid a divorce judgment through the court, but there are important differences. Spouses each hire an attorney trained in collaborative divorce, and they may also need the services of other professionals with regards to finances and children. Each spouse meets with their attorney separately, and then both spouses and their attorneys arrange a four-way meeting. Normally, attorneys agree to withdraw from the case if it cannot be settled without going to court.
If an agreement is reached, spouses finalize the divorce before a judge in a simple procedure that does not involve a contentious court hearing.
This process has two main disadvantages. The first is the cost of hiring attorneys, as mediators are usually much less expensive. The second disadvantage is that if the couple is unable to resolve their issues and the case must go to court, each of them will have to hire a new attorney and start the divorce over from scratch.
Lawyers in Divorce Mediation
Family mediation is often held without each partner including an attorney. Mediation includes legal advice and eventually, filing your paperwork with the court. Both partners build an attorney client relationship with their mediator as they learn to communicate with each other, rather than facing off. This keeps costs low and ensures the ultimate agreement arises from communication and compromise during mediation.
However, if your ex insists on having their attorney present, then both parties should be represented. Some people choose to hire a consulting attorney for the purpose of mediation, but generally, mediators can help both parties understand their legal positions and reach an agreement.
At your first consultation, your mediator helps you understand the process and gets a better idea of the issues you might be facing–your financial landscape, whether there are children involved in the divorce, and so on. The mediator may gather additional information about your case or ask you to collect information to bring with you in the future. At this stage, the mediator helps you understand what to expect and will explain the limitations of mediation. If both parties agree to proceed, you will schedule mediation sessions, during which you will both come to an agreement on everything previously discussed: finances, property, children. Every divorce is unique, and some people require more mediation sessions than others to address their issues, but most people can come to an agreement within a few months.
At Win-Win, your initial thirty-minute consultation is free, so you can learn about divorce mediation basics and speak with a mediator at no risk.
Working Toward a Settlement Agreement
Sometimes people worry about conducting their divorce through mediation because they believe the will never be able to come to an accord with their ex. But even in difficult cases, mediation is almost always successful, and the mediator may be able to suggest solutions to your issues that neither of you considered. As previously described and noted elsewhere on this website, mediation has tremendous advantages over resolving divorce in court and leaving decisions about your future in the hands of a judge.
The mediator will work equally with both parties–never taking sides–until they agree on each and every one of the issues related to the divorce. Only then will an initial agreement be drafted from everything discusses in mediation as well as through phone calls, text messages, and emails, and parties will have seven to ten days to review it before the mediator will schedule a time for them to sign.
Mediation concludes when the Divorce Packet, which includes the Agreement and other required paperwork, is filed by the mediator on your behalf. In four to six months, a judge will sign the paperwork, and your divorce will be complete.
We hope this information has given you a better understanding of the basics of mediation and how it can help you through your divorce as painlessly as possible. To learn more, call our office and schedule a free consultation with a mediator today.