Deciding to divorce is not easy. While many people automatically assume they will end up battling in court, divorce mediation is a viable alternative to a traditional courtroom divorce. Divorce mediation is often a less combative, more cooperative and less expensive option than a traditional divorce that takes place in court.
While divorce mediation isn't always the best solution, it might save you a lot of hassle and money. Is this the right solution for your situation? In some cases, the answer is yes. However, in other circumstances, you are better off going to court. Learning more about what divorce mediation is and how it works can help you make this decision
What Is Divorce Mediation
Divorce mediation is a process that allows both parties to plan, discuss, and come to a mutual agreement about all the details of the divorce without involving the traditional court system. Mediation is usually less expensive than going through the court system since lawyers are generally not included (although they can be if you so choose). Because both parties are working with the mediator -- instead of against each other, it can also be less acrimonious than a traditional divorce. The ultimate goal of divorce mediation is to reach an amicable agreement that works for both parties.
What Does a Divorce Mediator Do
The mediator is a neutral third party that guides both parties through the divorce mediation process. As an unbiased and impartial third party, the mediator allows each side to speak freely about their needs and state their goals for the divorce mediation. It also keeps both parties focused on the goals of the divorce, not the divorce itself. The divorce mediator then guides the parties to the best agreement possible. Using the best means at their disposal, the mediator helps the couple resolve their issues.
How to Choose a Divorce Mediator
While some mediators have taken classes, not everyone has. In fact, some states don’t regulate the field at all, allowing anyone to say they are a mediator. Some mediators might be lawyers, former judges, mental health professionals, or even psychologists. This means that not all mediators are of the same quality and you should do careful research before choosing a divorce mediator.
When selecting a mediator, ask the following questions:
These are questions you can ask while interviewing a mediator.
Have you taken any mediation classes? How many hours of mediation training have you completed?
Basic mediation training classes are 40 hours long. However, divorce mediation or family law is not necessarily their main focus. A lawyer may have only taken a single class (or even a single lesson) on mediation during law school. Mental health professionals may have the skills to help you through the emotions of the divorce process but not the financial aspects. Make sure the mediator you are considering can help both of you with all aspects -- financial, emotional, co-parenting -- of the divorce agreement.
How many divorces have you mediated? How long have you been practicing? Do you only focus on divorce?
Just because someone claims to be a mediator, that doesn’t mean they specialize in divorce mediation or even have any experience in divorce mediation. It’s important to find someone who understands the complexities unique to the divorce mediation process. Negotiating a divorce has unique aspects that the mediator must consider, such as custody arrangements and filing taxes.
Did you have to do any practical or supervised work before getting certified?
Not all divorce mediation certification programs offer this. However, it may help you gain some insight as to their experience and what they have learned while training. It also lets you know if an experienced divorce mediator helped train the mediator you are considering.
Organize Before You Start Divorce Mediation
Once you’ve selected a divorce mediator, start gathering all the documents you will need before you even start the divorce mediation process. Many people who have gone through divorce mediation have said that putting together the required financial information is sometimes the hardest part.
Start with the basics. Gather the documents of all the property you own -- including second homes -- and the mortgage statements for those properties. Round up the documents for your cars and any loans associated with them. Collect your pay stubs, statements for investment accounts, retirement accounts and any other loans or debts you might have. Include expensive jewelry, art, or other investment items.
During the divorce mediation, don't just think about your current financial situation. You should also consider future financial situations. If you have kids, you may need to figure out how to pay for college, who will provide the health insurance for them, and any other expenses you think they might incur in the future. Make sure to account for these during the divorce mediation process.
You should also consider if either of you have sick parents you may need to care for now or in the future. If either party has special needs now or in the future, add those to the list. It’s a good time to take an inventory of all these things and think about who will pay for them and how.
A more detailed list can be found here to help guide you through the process of gathering your documents for your divorce mediation.
What Happens During Divorce Mediation
Once everyone has agreed to participate in mediation, the divorce mediation process can begin. Each divorce mediation will be different and unique depending on its circumstances. However, all divorce mediations will follow this general process.
You and your spouse will each meet with the mediator (separately and together) and discuss your specific situation. This is the time for you to state your goals for the divorce mediation and to discuss what unresolved issues you are hoping to tackle during the process. The mediator will then recommend the best method to accomplish these goals.
During this stage, the mediator will learn about your marriage, why you are divorcing, the specifics of your financial situation and the specifics of the unresolved issues. This is the time when you will need all of your documents.
This is where most of the work happens in the divorce mediation process. During this time, each spouse will be expected to give and take until an you reach an agreement. This stage may take a few days or a few months depending on how willing each party is to negotiate. There may be just one meeting or several meetings depending on how the negotiation proceeds.
Once both parties have agreed to the terms of the mediation, the agreement is written out, signed by both parties and filed with the court. Once filed with the court, it becomes a binding, enforceable agreement. If you can not reach an agreement, the divorce will proceed to the courts where a judge will decide the agreement.
Advantages of Divorce Mediation
There are some definite advantages to using mediation over the courts when you are trying to settle a divorce.
Control over the mediation process
Because the courts are not involved, both parties are free to negotiate the terms of their divorce as they see fit. They have the flexibility to come to whatever terms work best for their individual situation without worrying about what the law mandates. If one or both parties decide that the courts need to decide the terms of the divorce, that judgment is binding. The judge will then craft an agreement that follows a set of rules and laws. These are likely rigid and non-negotiable and may end with neither party being satisfied with the agreement.
Maintains your privacy
Divorce mediation is private. All parties agree to sign and abide by a confidentiality agreement. This means they can never talk about what anyone said during the divorce mediation process. Because the divorce is kept out of the courts, the final agreement is not a part of the public record. People can speak freely about the circumstances that lead to the divorce during the mediation, without worrying that the information may find its way back to their children, their friends or even their employers. It also allows you to keep the financial details of your marriage and divorce private.
Tips for Successful Divorce Mediation
Even during a friendly divorce mediation, there will still be bumps along the way. It’s important to remember a few tips to make the process easier.
Be willing to compromise
During a divorce, it’s easy to let emotions get in the way. But, it’s important to put them aside in order to come to an agreement. Understand that one party or the other will not win on everything (even if it feels that way). The mediator is a neutral party that has training in how to deal with divorcing couples and helps them come to an equitable agreement. That means each party must be willing to give things up in order to move forward and reach an agreement. Don’t stick with your goals just because you want to “win” or because you “are right.” Be ready to give up some of those beliefs in order to move forward with the divorce mediation.
Also, don’t assume that the fairest or easiest way to divide everything is to split it down the middle. During divorce mediation, you will have to examine each asset separately. Before assuming a fifty-fifty split is best, consider that each asset will come with its own tax consequences.
Be open and honest
Understand that divorce mediation is a transparent process. That means that everything is open for examination. If you are trying to hide information or assets, you will derail the mediation process. This means the divorce is more likely to will end up in court.
Don’t use visitation as leverage
While it’s hard to separate children from finances, try to keep the decisions about custody and visitation separate from financial considerations (like who pays the mortgage). It’s easy to slip into the trap of using children as pawns but don’t. In the end, it will do them no good and is likely to create more conflict. This could result in the divorce having to move to the courts.
Take Care of You
Even with the best mediator and the best intentions, you need to know about divorce mediation is still a stressful process. Make sure you eat properly, sleep enough, and do what you need to do to lower your stress. Doing this will ensure you can make decisions calmly and rationally, and not from a place of anger or fear. A defensive position will almost certainly derail the divorce mediation process.
While divorce is sometimes the outcome of a marriage, it does not have to be combative or adversarial. Using divorce mediation as an alternative to the courts can result in a mutually beneficial agreement for both parties. However, only you and your spouse can make the final decision on how to best handle your divorce. If you know that the two of you will never reach an agreement, then it is best to let the courts handle it. But if you believe that the two of you can work together with the help of an impartial third party, divorce mediation is often a better answer than the court system.