Divorce mediation involves spouses who have decided to separate/divorce meeting with a neutral third party (mediator) to negotiate issues concerning child custody and support, spousal support, and division of assets and debts. In mediation, the mediator helps the divorcing couple:
- • identify needs and concerns of each spouse and their children
- • gather information that is important in making decisions about parenting and financial matters
- • explore various options and alternatives regarding parenting, financial, and property division issues and
- • negotiate with each other to achieve a set of agreements that each spouse feels satisfied with.
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Benefits |
1. Relationship - Spouses who choose to mediate their divorce have a better chance for a more civil relationship because they cooperate in developing their own document which specifies the conditions of their separation or divorce. Unlike the adversarial legal approach to divorce, mediation emphasizes negotiation and cooperation between the divorcing partners. Such cooperation is particularly important if the couple have children in that it provides a positive basis for discussing parenting issues across the years.
2. Economic - Mediation is less expensive than paying two lawyers to fight for the respective spouses. What the couple spend in legal fees they cannot keep as assets to later divide.
3. Avoid Public Exposure - Some spouses do not want to go to court and discuss the details of their private life and finances in public. Mediation takes place in a private and confidential setting.
4. Less Time Consuming - Mediated separation and divorce cases usually take considerably less time than a litigated settlement.
5.. Greater Overall Satisfaction - Mediation results in an agreement developed by the spouses, not one imposed by a judge or the court system. A comparison of couples who chose mediation with couples who chose litigation found that those who mediated their own settlement were much more satisfied with the conditions of their agreement. In addition, children of mediated divorces adjust better to the divorce of their parents than children of litigated divorces.
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Areas of Mediation |
- • Child custody and visitation
- • Child support
- • Property settlement
- • Spousal support
(*Note: Mediators often avoid using the terms “child custody” and “visitation.” Instead, mediators discuss developing a “parenting plan.”)
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Basic Mediation Guidelines |
1. Concern for Children - What is best for your children is a primary concern for the mediator. Children of divorced parents adjust better under three conditions:
- • both parents have regular and frequent access to their children
- • the children see the parents relating in a polite and positive way
- • both parents talk positively about the other parent and neither parent talks negatively about the other to the children.
2. Fairness - It is important that the spouses display a sense of justice. Each partner must feel that the agreement is fair with neither party being exploited or punished. It is “fair” for each parent to contribute financially to care for their children. It is “fair” for each parent to have access to his or her children.
3. Open Disclosure - The spouses will be asked to disclose all facts, records, and documents to ensure an informed and fair agreement.
4. Other professionals - During mediation the spouses may be asked to consult with an accountant regarding tax laws. In addition, each spouse is encouraged to consult an attorney throughout the mediation and to have him or her review the written agreements which result from mediation. However, during the mediation sessions, all forms of legal action against each other (the spouses) should be stopped.
5. Confidential - The mediator will not divulge anything the spouses say to him or her to the other partner or to outsiders without the permission of the spouses. The spouses are asked to sign a document stating that they agree not to empower any attorney to subpoena the mediator or any records resulting from the mediation for use in any legal action. Such an agreement is necessary for the spouses to feel free to talk about all aspects of their relationship without fear of legal action against them for such disclosures.
6. Commitment - Successful mediation is more likely to result when the spouses are committed to the basic premise that they will work toward a resolution of their disagreements, that they will focus on issues rather than attack each other, and that they will not interrupt each other. Mediation is not for everyone. Spouses who want to punish each other, who think that their lawyer “can get them a better deal,” or who have been abused in the marriage should not become involved in mediation.
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Process |
1. Appointments - Appointments will consist of a combination of conjoint (both spouses and the mediator) and individual (one spouse and the mediator) sessions. The number of appointments will depend on the number of issues the spouses need to negotiate and the degree to which they are willing to compromise. The frequency of appointments is scheduled according to how much time spouses need to complete “homework assignments” and/or to “think” between sessions.
2. Outcome - As a result of the mediation sessions, the mediator will draft a document summarizing the agreements that have been made. In some states the court will accept the "Memorandum of Agreement" drafted by non-attorney mediators. Some spouses prefer for their respective attorneys to look over the final document before signing. Some mediators are also attorneys.
When the document becomes “legal,” support payments, custody, and visitation can always be changed by mutual agreement or by going to court.
3. Children - After the written document has been agreed to and signed by both spouses, their children (depending on age appropriateness) may be asked to attend the next session at which the parents tell them of their agreements. In some cases the children may be involved in the earlier sessions to provide input into the agreements which will affect their lives. While children may be involved in mediation, this is rare.
4. Termination - Divorce mediation may be terminated at any time for any reason by the spouses. Under certain conditions, the mediator may also terminate the process if he or she feels that the mediation process is not serving the best interests of one or both participants.
