What Is Divorce Mediation?
Divorce mediation is for couples who seek an efficient, yet fair, divorce process. Mediation is a collaborative process that allows individuals to control the outcome. The mediator is a neutral, third-party professional who keeps spouses focused on the goal of a fair outcome, not battling over past resentments.
During divorce mediation, the mediator guides couples in addressing all the issues associated with divorce, including asset division, custody arrangements and spousal and child support.
Couples often choose divorce mediation because mediation is faster, less expensive and less contentious than a traditional divorce process. Reducing the stress and trauma of the divorce process itself may ease co-parenting after divorce, as well.
Mediation is often a “one-stop” option for couples, as the mediator prepares the full divorce settlement agreement and provides the paperwork necessary for the divorce to become final with a court.
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How Is Divorce Mediation Different From Traditional Divorce?
Many say one of the biggest pros of divorce mediation is that it is fundamentally different from a traditional divorce process.
Divorce mediation is a non-adversarial process, unlike traditional divorce, in which lawyers represent spouses against each other.
In mediation, spouses work together with the help of a neutral third party to reach agreements that make the most sense after considering their actual family circumstances.
With divorce mediation, couples often finalize their divorce without making court appearances. Divorce mediation also takes less time than the traditional divorce process. On average, traditional divorce takes families at least a year, and potentially much longer.
The mediation process, on the other hand, can be completed as quickly as couples choose.
Another pro of mediation is that spouses have flexibility to cost effectively reach agreements when they have complicated circumstances. For example, spouses who own a family business might want to craft a creative arrangement that allows both spouses to stay involved in the business in the future. Working with their mediator and other business advisors, such visions can be turned into the appropriate legal documents to protect both spouses.
Alternatively, the traditional divorce process is usually designed to sever all assets at the time of the divorce. While this might be a desired outcome in most cases, your family might want or need more flexibility due to unique circumstances.
Mediation also allows for more creative parenting agreements when courts tend to default to every other weekend and one night per week arrangements.
Will You Still Need a Lawyer?
Mediators advise their clients that each of you always has the right to hire a lawyer and most encourage and even require each spouse to hire one. Those attorneys provide legal advice and review the final agreement before it is filed with the court. However, those attorneys have minimal involvement and are not involved in the negotiations and make no court appearances. This is a huge pro of the mediation process that saves couples thousands of dollars.
Even a failed attempt at mediation can be cost effective. If couples abandon mediation and hire litigation attorneys, they will find that they are more prepared and likely already have some of the information the attorney needs to move the case forward quickly. The attempted mediation will still save attorney’s fees for each of them.
What Is the Role of the Mediator?
The role of a divorce mediator is to facilitate communication between divorcing spouses and to guide them in deciding:
- Which assets have to be divided
- How the assets will be divided
- What custody arrangement is appropriate for the family and how to turn that arrangement into legal language for the settlement agreement.
- Whether spousal support, alimony or child support is appropriate, and how to determine the amounts.
A mediator should also inform you of how the divorce process is conducted in your state, if you were to choose the traditional method of divorce. However, the role of the divorce mediator is not to represent either one of you in court or to argue on your behalf. Your individual lawyer can also provide guidance about the divorce process and what potential outcome you would have if you chose not to mediate.
A mediator is not a judge or arbitrator in your case. In other words, they do not make the final decisions for you. This might be seen as a potential con of the process. Couples who are hoping someone else will tell them what their decisions should be will likely be disappointed by mediation. A mediator will not make a decision for you, but will help you and your spouse identify options and so you can decide what is best for you.
Discussions in front of a mediator are confidential. If one or both parties changes their mind during mediation and chooses to proceed with court, in most jurisdictions the mediator cannot be called as a witness for either spouse in court.
How Long Does Divorce Mediation Take?
A fourth pro of divorce mediation is that the timeline is ultimately controlled by the spouses themselves. The process can proceed according to their own needs and is not controlled by busy court calendars or legal deadlines.
This also allows the couple to take the time needed to discuss issues that are important or pressing for them. For example, some couples might need the initial sessions to help them physically separate and designate new living places. Others are ready to jump into dividing assets or discussing custody.
Be aware that moving too quickly can add stress to the mediation process, while delaying too long can be detrimental if one spouse wants to move forward and the other is reluctant. If one spouse is being uncooperative, the other may feel they have no option but to switch to a litigated divorce
The goal of mediation is for each couple to reach a full and fair settlement agreement that addresses all of the issues important to them. A mediator will usually consider mediation as on-going until a settlement agreement is signed. Your mediator will have advice and guidance about how frequently they like to see their clients.
When Is Divorce Mediation Not Appropriate?
One con of divorce mediation is that it may not be appropriate for every couple.
Mediation is generally not advised in cases where there is a history of domestic violence. Domestic violence is evidence of an extreme power imbalance between the spouses that is not conducive to mediation.
For mediation to be successful, both parties must feel that they can speak freely in front of the mediator and each other. The mediator ensures that communication remains respectful and cordial. The mediator can also build momentum toward settlement by highlighting areas of mutual agreement while helping to resolve areas of disagreement.
However, if one spouse is afraid to speak freely or is afraid of repercussions after speaking freely, mediation is likely not appropriate.
Additionally, for mediation to be successful, both parties need to feel confident that full disclosure of all financial assets is made. The mediator will instruct the spouses what financial information needs to be provided, but if either spouse feels the other is not being truthful or honest, mediation is not appropriate.
If your marriage does not involve domestic violence, and you are confident that you are familiar with your family’s assets, then mediation is an option to consider.
Other Benefits of Mediation
In addition to being more cost effective, faster and flexible than traditional divorce litigation, divorce mediation helps a couple to cooperatively end their marriage by reducing conflict. The focus is on making decisions together, not on fighting against each other. As a result, couples who mediate are able to reduce the hostilities and leave the marriage with some reduction in rancor which reduces the emotional stress involved in the process.
Mediation makes it easier for parents to co-parent after divorce because they craft a parenting plan that is detailed to their own needs and schedules. Mediation also models cooperative behavior so that children see their parents working together.
Couples who mediate learn conflict-resolution skills so that if they have disagreements in the future (over custody, payments, or other matters) they already have the skills to work together to find a mutually beneficial outcome without necessarily having to go back to court.
Divorce Mediation Takeaways
Divorce mediation is a viable alternative for most couples who are facing divorce. If you separate in 2024, speaking with a mediator at the start of a separation might be the key to keeping your divorce out of the courthouse and saving you thousands of dollars in legal fees.
Mediation may not be for every couple, but couples who successfully complete the process are able to divorce faster, less expensively and, in most cases, more calmly, than those couples that choose the traditional divorce system.
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Frequently Asked Questions (FAQs)
What Does Divorce Mediation Cost?
The cost varies depending on whether your mediator charges a flat fee or an hourly rate. Often, the flat fee will be determined based on the complexity of your case. Generally, you can expect a flat fee of between $2500-$7500 depending on the number of hours involved in your case and the complexity of the documents you will need prepared.
In hourly cases, the mediator will charge a per session fee that is determined by their hourly rate. If your mediator is a lawyer, this can vary anywhere from $250 to $500 per hour, and perhaps more.
Both flat fee and hourly rates will also vary depending on your geographic region.
Does My Mediator Need to be an Attorney?
No, your divorce mediator does not need to be an attorney. However, if you choose a therapist or other professional to conduct your mediation, you should be confident that they have the ability to accurately answer all of your questions about the issues in your divorce.
You should also be aware that only lawyers can draft separation agreements or court documents. If your mediator is not a lawyer, one of your individual attorneys will turn the mediation agreement into court documents that will be filed to end the marriage.
Am I Divorced When My Mediation is Over?
No, completing mediation and reaching an agreement on asset division, custody, etc., does not mean your divorce is over. Your mediator will usually prepare your settlement agreement and other paperwork required by your state to have your divorce finalized. You might still be married for several months while you wait for a formal decree from the court announcing that you are divorced.
