Divorce FAQ

What Is Divorce Mediation?

Divorce mediation is a process by which divorcing couples work together with the assistance of a neutral third-party mediator to negotiate and resolve divorce issues. Some states have particular training or licensing requirements for mediators, but in general, a person who has received training in mediation can serve as a mediator.

What are advantages of mediation?

A key advantage to mediation is that the parties themselves, not a court or some other third party, are primarily responsible for the outcome. The other main advantages of mediation have to do with time, money, form, and satisfaction.

  • Time. Mediation usually takes less time than litigation because it avoids court scheduling delays and because there are no formal court rules to interfere with the pace of negotiations.
  • Money. Because preparing a case for trial is expensive, mediation saves money by reducing the number of issues that must be prepared for trial.
  • Form. In mediation, the parties have wide discretion to control the form of the proceedings. This control means the parties can set rules appropriate for their situation and avoid formalities that may hinder negotiations.
  • Satisfaction. Because mediation allows the parties to actively participate in negotiations and to control the outcome, divorce issues resolved through mediation are less likely than those resolved through litigation to result in future disputes.

When is mediation appropriate?

While there are many advantages to mediation, it is not always appropriate. For example, if you believe that your spouse will refuse to disclose financial information, mediation may not be appropriate because a mediator has no power to order financial disclosure. Additionally, because mediation has fewer safeguards to prevent and little power to correct power imbalances, mediation may not be a good idea if you and your spouse do not have equal bargaining power or if you believe your spouse will dominate the negotiations.

In general, mediation is probably appropriate if:

  • The decision to divorce is mutual (both parties believe that they won't change their minds or eventually work things out).
  • Both parties need or want to remain on good terms after the divorce (either because of children, personal desires, or other reasons).
  • The parties have equal bargaining power (both parties accept fault, share the blame, or agree that nobody is at fault; both parties are physically and mentally well; both parties are fully aware of their finances; each party trusts the other).

What divorce issues can be resolved through mediation?

Divorcing couples are typically free to choose which issues to resolve through mediation and which issues to resolve in court. Some states require mediation to resolve issues regarding children, such as child support, visitation, and child custody. In other states, mediation of child-related issues is not mandatory but can be ordered by the court when necessary. However, all child-related issues resolved through mediation will require court approval to be enforceable.

Other divorce issues commonly resolved through mediation include spousal support (alimony), marital-property division (marital homes, family-owned businesses, and other jointly owned property), division of retirement benefits (pensions, 401(k)s, and other retirement plans), and health-care benefits.

What is the role of the mediator?

The mediator's role is not to solve the parties' problems for them. Rather, the mediator's job is to create an environment in which the parties can solve their problems together. To create such an environment, a mediator will usually work with the parties to create a mediation agreement, impose his or her own rules on the proceedings, and act as a negotiation facilitator.

What happens when an agreement is reached?

When the parties reach an agreement through mediation, the agreement must be put in writing. The written agreement is called a divorce settlement agreement or a marital settlement agreement. Each party should have his or her own attorney review the agreement before he or she signs it. The parties should have an attorney draft the final version of their agreement and file other required documents with the court. An attorney, unlike a nonattorney mediator or the parties themselves, is typically in a better position to see that the agreement meets the court's formal, procedural and legal requirements. An agreement that does not meet legal or procedural requirements will not be accepted by the court.

Copyright © 2011 FindLaw, a Thomson Reuters business

DISCLAIMER: This site and any information contained herein are intended for informational purposes only and should not be construed as legal advice. Seek competent legal counsel for advice on any legal matter.

View Archives