Understanding How Divorce Mediation Works
Updated September 04, 2018
Mediation is an intervention used to help settle disputes of all kinds. It can be especially useful in family law situations involving divorce and child custody. During this process, a professional mediator tries to resolve disputes between the two parties. Because the mediator is a neutral, third-party that is trained in helping people find solutions, they can help facilitate voluntary agreements that couldn't be reached alone or through the court system. Divorce mediation, in general, has a very high success rate. This has led many states such as Texas and Rhode Island to require mediation for certain divorcing parties.
Though it's not a complicated process, it is important for anyone going through or thinking about going through mediation to thoroughly understand the inner workings. This article serves as a divorce 101 and will answer the most common questions divorcing couples have about arbitration.
Divorce Mediation Goals And Benefits
The goals of mediation are much different than a trial or divorce decided by the court system. Whether the court suggests divorce mediation or it is taken on by voluntarily by the parties, the end game is usually the same. Divorce mediation should:
- Bring about a legally enforceable divorce agreement that is acceptable to both parties.
- Lower added expense and hostility that can accompany traditional litigation.
- Reduce negative effects on minor children that result from divorce/custody battles.
Unlike a court settlement that usually leaves at least one party unhappy, the results of divorce mediation often include an agreement that everyone can accept. According to research, other benefits of divorce mediation include:
- A comprehensive agreement that reduces the need for future court appearances.
- Financial and tax savings that can't be achieved through the court system.
- Less time spent than if litigation would have continued.
- Improved divorcing party and parent-child relationships.
A Divorce Mediation Case Study
Donna and her ex-husband James can attest to these benefits, even though they both thought mediation to be unnecessary at first. Like many couples, the Hendersons assumed that they would both have to hire attorneys and 'duke it out' in court to have their marriage dissolved. They tried splitting their assets and working out a parenting agreement themselves, but bitter feelings toward each other led to poor communication followed by lots of arguments. Just as they were getting ready to "lawyer up" Donna's counselor suggested she consider divorce mediation.
When they first began considering divorce, Donna and James had started relationship counseling through Regain. James stopped attending therapy within a few weeks, but Donna continued, feeling more empowered with every session. Although she was open to the idea of mediation, she thought James would never agree. Though he did have his reservations, James agreed to at least try mediation. In just a few sessions, the couple had agreed on the settlement details and were ready to move forward with their divorce.
Though the couple had to make some concessions when it came to possessions and time with the children, they ended up with an agreement that was both fair and suitable. Looking back a few years after the divorce, James is happy to have chosen mediation over a contested divorce. "Fighting in court would have hurt our children," James reflected. Now that they are both remarried, Donna is just glad that her amicable divorce with James to co-parent amicably.
How To Find A Mediator
There are lots of ways to find a mediator if you are interested in settling your divorce without a drawn-out legal battle. You could start with a quick google search in your area, but it's probably better to get a referral. Possible sources for a mediator referral include:
- A family member, friend, or therapist
- Professional mediation groups such as org and Mediate.com
- A local attorney
When selecting a divorce mediator, make sure you choose someone who is licensed and has extensive experience with divorce mediation. Sometimes mediators are attorneys, other times they are not. Regardless, the best divorce mediators possess an extensive skill set that allows them to offer solutions to complicated problems. For this reason, trained therapists often make great divorce mediators.
The Process: How Divorce Mediation Works
Because the rules surrounding divorce mediation can vary from state to state, the process isn't 'cookie cutter.' For example, in many places, divorcing couples attend mediation together in the same room. Other areas separate the parties, and the mediator moves back and forth between. Even though there can be differences in mediation depending on where you live, generally, mediation moves through stages similar to the outline below.
- Introduction - During this initial meeting, the mediator will give parties the opportunity to discuss why they have chosen mediation and what they hope to gain. The mediator will provide basic information about the process, guidelines, as well as expectations. During this time, the mediator may assess the issues you agree/disagree on for future planning.
- Information Gathering - Over several days or weeks, both joint and private meetings will be held. Information about finances and other relevant documentation will be given to the mediator. During this time divorce-related problems will be identified, and the mediator will propose effective solutions. All discussions will take place in a peaceful, judgment-free environment where both parties are encouraged to express their true feelings and concerns regarding the divorce, finances, assets, debts, liabilities, children, etc.
- Guidance - The mediator will then guide the divorcing couple into making agreements related to finance and family. If children are involved, a comprehensive parenting plan that outlines support, custody, and visitation will be drafted as well. Once all issues are resolved through mediation discussions, the final steps can take place.
- Agreement - During this stage, the mediator will draft a legally binding document and present it to the divorcing parties. If attorneys are involved, they will go over the document with their clients. Once everyone agrees, all parties will sign, and the agreement will become a final judgment.
The Cost Of Divorce Mediation
As with any legal service, the cost will vary depending on the mediator you choose, the amount of time it takes to settle your issues, if you have minor children and if there are extenuating circumstances that make your case unusually difficult. Mediation fees can range from 50 to 200 dollars an hour which can seem like quite an expense to many divorcing couples. However, statistics show over and over again that the upfront costs of mediation total are less than the amount it would cost to take a contested divorce to trial. Though every situation is different, most couples find that they saved money by mediating their divorce instead of 'duking it out' in court.
When Is Mediation Not An Option
While mediation is the best choice for many divorcing couples, it's not the solution for every situation. When deciding if mediation is for you, ask yourself the following questions: Do we both want to get a divorce? Do we have a set list of assets/debts? Can we communicate enough to try mediation? If the answer to any of these questions is 'no,' divorce mediation may not be your best option. Other situations in which divorce mediation usually isn't a good fit include:
- Divorces in which one of the parties refuses to give mediation a chance. If your spouse is unwilling to give mediation a shot, it will be a waste of time and money. Instead, you're probably best preparing for trial.
- Divorces in which both parties can agree on their own. Simple divorces and divorces where parties have no trouble coming up with an agreement on their own don't need to be mediation. Instead, speak with an attorney about an uncontested divorce.
- Divorces in which one or both of the parties are incarcerated or incapacitated. For mediation to be successful, both parties have to be present and capable of making sound decisions in their (and their children's best interest.) There are avenues for divorce if your spouse is incapable of making these decisions, but divorce mediation isn't one of them.
- Divorces that involve domestic violence or in which a partner fears for his or her safety. This one is pretty self-explanatory. For a real resolution to take place, both partners have to be comfortable communicating. If you are wanting a divorce but are a victim of domestic violence, reach out for help.
- Divorces in which a spouse believes the other may be hiding assets. Once a divorce has been through mediation, the agreement signed is binding. If you think your spouse is hiding assets, it might be best to involve an attorney. Without honesty and open communication from both parties, divorce mediation won't be successful.
Still not sure if mediation is right for you? Consider enlisting the help of a relationship therapist by signing up with Regain. Counseling can help you regain communication with your spouse, getting rid of the need for divorce mediation altogether or assist you in preparing for the mediation process. Either way, you will be better prepared for the next phase of your life: moving on from your divorce.