Topics on this page:
- What is divorce mediation?
- What kinds of issues can be resolved through mediation?
- What are the benefits of mediation?
- What is the role of the mediator?
- Can the mediator make any decisions for the parties?
- What happens during mediation?
- How do I decide if mediation is right for my situation?
- Common Misconceptions About Mediation
What is divorce mediation?
Divorce mediation is an out-of-court process in which spouses meet with a neutral third party (the mediator) to identify issues of dispute, discuss possible options, and negotiate a separation agreement. The objective of mediation is to achieve an agreement where the parties themselves have control over the terms.
Spouses have the option to choose mediation voluntarily, or it might be mandated by the court. Regardless of whether it's court-mandated or voluntary, parties in mediation are not obligated to come to a resolution regarding their disagreements.
What kinds of issues can be resolved through mediation?
Any type of conflict can be resolved in mediation. In the context of divorce, mediation can help spouses resolve issues such as:
- 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
- financial issues of property and support.
What are the benefits of mediation?
Mediation programs can be very beneficial to people who are divorcing. Mediation can also benefit individuals who have long been divorced but who find themselves in a dispute in their post-divorce relationship. Some of the benefits of mediation are:
- Cheaper and Faster Resolution: Mediation is generally more cost-effective than going through a traditional divorce in court. It usually involves fewer attorney fees and costs than a traditional court proceeding. Mediation also tends to be quicker than a divorce in court. Mediation is flexible and can accommodate various schedules, making it easier for couples to find mutually agreeable times to meet.
- NOTE: The cost of mediation will vary depending on your specific situation. There are some court, government, and community programs that may provide mediation services for free or based on a sliding scale. In private mediation, the costs will likely be on an hourly basis. Typically, the cost of mediation is shared between the participants.
- Control and Empowerment: Mediation allows couples to have more control over the decisions that affect their lives. Spouses can actively participate in creating solutions that meet their family’s specific needs, rather than having a judge make decisions for them. Mediation allows for creative and personalized solutions that may not be possible in a court setting.
- Reduced Conflict: Unlike divorce in court, mediation is a non-adversarial process. This can lead to less conflict between the parties than a divorce in court. The collaborative nature of mediation can result in improved communication and a greater likelihood of maintaining a more amicable relationship post-divorce. This can be especially important if there are children involved. The cooperative and collaborative nature of mediation can reduce the emotional and psychological stress that often accompanies a divorce trial.
- Confidentiality: Mediation sessions are private and confidential. This can encourage open and honest discussions about sensitive issues without the fear that details will become part of the public record.
- Preservation of Relationships: If there are children involved, mediation can help parents maintain a more positive co-parenting relationship. This can be crucial for the well-being of the children and their ability to adjust to the changes brought about by the divorce.
What is the role of the mediator?
The mediator’s role is to assist the parties in making decisions by guiding discussions without advocating for either side. The mediator is completely neutral in the mediation process. Mediators are required to adhere to the Maryland Standard of Conduct for Mediators.
As a neutral party, the mediator cannot give any legal, financial, or any other specialized advice. During the mediation process, you may want to consider seeking the advice of an attorney about the options under discussion.
Can the mediator make any decisions for the parties?
No, the mediator cannot make decisions for the parties. The mediator does not represent either party and cannot make decisions or give any legal, financial, or any other specialized advice. The mediator must remain completely neutral throughout the mediation process.
What happens during mediation?
During divorce mediation, the spouses will attend a series of meetings with a mediator. The process usually begins with an initial meeting where the mediator explains their role, the mediation process, and the ground rules for the sessions. After the orientation, the mediator facilitates sessions geared toward:
- Identification of Issues: The mediator helps the couple identify the issues that need to be addressed, such as property division, child custody, visitation schedules, child support, spousal support, and any other relevant matters.
- Generating Options: The mediator assists the couple in brainstorming possible solutions for each issue. This encourages creative thinking and helps identify mutually acceptable outcomes.
- Negotiation: The spouses, guided by the mediator, engage in discussions and negotiations to work out the details of their agreements on solutions to the identified issues.
- Agreement Drafting: Once agreements are reached on each issue, a formal written separation agreement is drafted that outlines the terms and conditions of the spouse’s divorce.
- NOTE: If the mediation results in an agreement between the parties, some mediators will draft an agreement, others will not.
Once the parties have drafted the formal separation agreement, it is recommended that each spouse should have their attorney review the proposed agreement to ensure their rights and interests are protected. Attorneys can provide legal advice and recommend any necessary revisions to the agreement. Once both spouses and their respective attorneys are satisfied with the agreement, the final version is signed by the parties and submitted to the court for approval. The court's approval makes the agreement legally binding.
How do I decide if mediation is right for my situation?
When deciding if mediation is right for your situation, 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 wellbeing. 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. The mediator will help search for win-win solutions and will not pressure either party to accept something they do not want. Assuming the mediation is voluntary, rather than court-ordered, either party can stop the process at any time and return to the adversarial process if they wish.
Without my own counsel there to advise me, I won’t be able to manage.
There is always an opportunity to consult with counsel or other experts between sessions and to bring that knowledge to the next session. If you have an attorney, consulting with your attorney is encouraged. If you don’t have an attorney, there are books and articles on children and divorce, legal rights, and financial matters that can help you understand and manage the mediation process.
The sessions will deteriorate into mudslinging and rehashing old arguments.
There will be some conflict in the mediation. 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 how 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.
Mediation: A Four-Part Series from the Maryland Courts
Part 1: What is Mediation? from the Maryland Courts
Part 2: How Do I Find a Mediator? from the Maryland Courts
Part 3: How to Participate in Mediation from the Maryland Courts
Part 4: Common Questions After Mediation from the Maryland Courts