Divorce mediation is a time-limited, confidential process in which both you and your spouse meet with a neutral third person (the mediator) who helps you decide on the division of parenting responsibilities, where your children will live, when your children will spend time with each parent, how parenting decisions will be made, and the financial issues of property and support. Mediation may be voluntarily chosen by the parties or it may be ordered by the Court in litigation. Whether Court ordered or voluntarily chosen, mediation is voluntary in that the parties may, but are not required, to reach an agreement about the disputed issues. The goal of mediation is to reach an agreement, the terms of which are in the parties’ control. In litigation, decision-making is turned over to a Judge or Master, who will make the decision for the parties.
A mediator may or may not be a lawyer, and the mediator does not represent either party in the mediation. The mediator’s goal is to settle the case, not to advise the parties or make sure either party gets the best deal possible. Mediation may include the parties’ attorneys, if represented, or the parties may participate in mediation without attorneys. If an agreement is reached, some mediators will draft an agreement, others will not. If the mediator drafts and agreement for you, you should seriously consider consulting with an attorney before signing. Also, you may want to consider seeking the advice of an attorney as you go through the mediation process, for advice about the mediated options under discussion.
When deciding whether or not to choose mediation, here are some broad guidelines to think about:
Consider litigation when:
- There is a history or current threat of violence in the family. You cannot talk or negotiate freely if you fear for your safety.
- Animosity between you and your spouse is so great you could not sit in the same room together. If being together triggers severe migraines, better to leave the direct communication to an attorney.
- Your partner refuses to disclose financial information. Good faith negotiation cannot occur if one person is withholding vital information.
- You or your partner are unwilling to discuss, even with a third person, the choices available.
- Your partner is unlikely to keep regular appointments.
Consider mediation when:
- You are most concerned about your children’s well being. Research shows that when there is less parental conflict during and after the divorce, children adjust more easily and are more likely to meet their potential as they reach adulthood.
- You are considering joint or shared custody. Mediators are trained to address a wide range of issues and situations.
- Despite intense hurt or anger, you want to keep the process as civil and peaceful as possible. Mediation offers an opportunity to improve and keep the lines of communication open for future cooperation as parents.
- You are unable to spend thousands of dollars in court costs and lawyers’ fees.
- You want to maintain some control and dignity during a very difficult time. During a separation your self-esteem can get pretty battered. The winner/loser mentality of the litigation process often aggravates those feelings. Mediation, on the other hand, rests on the premise that each person has legitimate concerns.
Common Misconceptions About Mediation
I’ll be pushed into compromising or agreeing to something that is not in my best interests.
A professional mediator will keep you on task and help you consider many options, possibly even ones you hadn’t thought about. He or she will help you search for win-win solutions, and will not pressure you to accept something you don’t want. Assuming the mediation is voluntary rather than court-ordered, you can stop the process at any time and return to the adversarial process if you wish.
Without my own counsel there to advise me, I won’t be able to manage.
There is always an opportunity, actually encouragement, to consult with counsel or other experts between sessions and to bring that knowledge to the next session. There are also hundreds of books and articles on children and divorce, legal rights, and financial matters.
The sessions will deteriorate into mudslinging and rehashing old arguments.
There will be some conflict in the mediation (otherwise you’d still be together). However, a competent mediator will not allow name-calling or abusive behavior. Blaming and counter blaming will be redirected back to the task at hand and focused on the future.
The other side is so unreasonable we would never get anywhere.
As a neutral party, the mediator asks questions aimed at defining the concerns underneath the positions staked out. You may also be surprised at how civilized your partner’s behavior is with the third party mediator present, compared to interactions outside of the mediation sessions.
If you are still unsure which way to proceed, consider consulting with both a mediator and an attorney. Ask questions about the procedure, time frame, costs, payment method, the percentage of cases they successfully settle, and other consultants you would need. Remember that you can stop mediation at any time and hire a lawyer to litigate. Or, if you’ve started working with a lawyer, you can shift to mediation, then return to a lawyer for legal advice and filing your mediated agreement with the Court.