What is divorce mediation? Read on to understand what it is and whether it might be right for you.
Divorces are stressful and can often turn into long, contentious legal battles. One alternative to fighting it out in court, though, is divorce mediation.
Mediation is a collaborative process used to resolve many types of disputes, both personal and legal. Divorce mediation doesn’t work for everyone, but it does help many people avoid some of the headaches and costs associated with fighting things out in court.
So if you're wondering "what is divorce mediation" here are the key points to know about mediation generally and how the mediation process works in the context of divorces.
Mediation is a process in which a neutral third party helps the parties try to reach an agreement of their own making. Mediation is often referred to as a “party-driven process” because the outcome depends on the will of the parties. Unlike in arbitration, the mediator does not decide the issues for the parties. The mediator simply steers the conversation and tries to help the parties reach an agreement on their own terms.
The mediator may or may not be an attorney. Additionally, parties may attend by themselves or bring attorneys with them.
Parties may choose to try mediation, or the judge may order them to try it if a case has already been filed with the court. Regardless of whether the parties enter mediation because of a judge’s order or their own choice, mediation is an out-of-court process. (That is, in all likelihood, mediation sessions take place somewhere besides the courthouse).
As mentioned, mediation agreements can be binding and enforceable. But again, an agreement is only reached through the parties’ consent.
So, what is mediation in the divorce process? Divorce mediation brings the party-driven mediation process to divorce proceedings.
Whether it be spousal maintenance, who gets to live in the family home, or child custody, divorce often involves a lot of emotionally charged issues that can be difficult to work through. Similar to mediation generally, a divorce mediator acts as a neutral third-party to help spouses work through these issues and form their own agreements, rather than resolving them through expensive divorce litigation or giving a judge the final say.
There are numerous benefits to divorce mediation.
As we discuss in our overview of Family Law, the best solutions often occur when the parties reach an agreement for themselves. When that happens, it can save you time, money, and headache. And these benefits can be particularly pronounced when dealing with such important and emotional issues as arise in a divorce.
Additionally, resolving your issues through divorce mediation also allows you and your spouse to control and shape the outcomes. At the other end of the spectrum, in a contentious divorce, you could put your issues before a judge and have them decide the issues for you.
Sometimes this is necessary, and that’s how many divorces unfold each year. But this means that someone else is making huge decisions about your life--whether relating to spousal support, child custody, or division of property--that you will be legally obligated to accept.
Practically speaking, divorce mediation may also give you more control over the schedule and timing of the process. You will need to coordinate your own schedule with your spouse, the mediator, and perhaps your respective attorneys. But that is often still easier than having your schedule dictated by court dates.
Here are some of the other things you might want to know if you’re considering mediation for your divorce.
Similar to any mediation, mediators in a divorce act as a neutral third party and help you and your spouse work through issues. The goal of divorce mediation is to allow you and your spouse to shape your own outcome rather than having a judge decide the issues for you, and to do so while saving some of the time, headache, and cost involved in contentious divorce proceedings.
As noted above, the mediator generally does not decide any issues the way a judge or arbitrator would. Instead, a divorce mediator helps you and your spouse to reach your own agreements.
As with divorce cases generally, how long divorce mediation takes will depend on how complicated the issues involved are. Often, divorce mediation will unfold over 1-2 months and 3-4 mediation sessions. Mediation sessions are generally an hour or two each.
The process could take much shorter or much longer, depending on your circumstances. And of course, this is all subject to the parties’ continued buy-in to the process.
Remember, even if the mediator is an attorney, they cannot provide legal advice to either you or your spouse. The divorce mediator is there to be a neutral third party and help facilitate the conversation.
So in that sense, you should probably have a lawyer review any agreements before you sign them. And to a certain extent, the question of whether to hire a divorce lawyer turns on the same factors whether you’re attempting mediation or not:
Yes, mediation is common in divorce cases.
Not everyone tries divorce mediation, and not everyone who does is successful, but many divorce cases each year involve mediation at some stage in the process.
Mediation is a process that can help people resolve disputes of all types and avoid the time, cost, and headache of lengthy legal battles. These benefits can be particularly pronounced in the context of a divorce.
Divorce mediation is a voluntary process, though. The parties have the opportunity to shape the outcome of their dispute, but only if they can reach an agreement. The divorce mediator is a neutral third party and will not decide the issues for the parties.
Divorce mediation does not work for all couples, and sometimes contentious legal battles are unavoidable. The reality is that both the stakes and emotions can run high in divorces, and some things are worth fighting for.
But, for those who are able to work through their issues, the benefits of divorce mediation can be significant. And remember, if you want legal assistance and someone to represent your interests, you should speak with a divorce lawyer regardless of whether the mediator is an attorney or not.