How Does Divorce Mediation Work?

What Can I Expect at a Divorce Mediation?

If you are getting divorced, you probably have a lot of questions about the process and the available options for divorce, including, “Dow does divorce mediation work?”  Divorce mediation is one of the many alternatives available to people who are getting divorced that helps keep the arguments and divorce out of the court system.  It allows the parties to work collaboratively to come up with a creative solution to their disagreements and possibly receive a final result more quickly than a traditional divorce.  Mediation also gives couples that are close to an agreement the support that they may need to agree on the outcome of their divorce.  While it is not going to be the best option in every scenario, divorce mediation is one of the most widely used alternatives to a traditional, litigated divorce, and the results often speak for themselves.

Getting divorced is not a one-size-fits-all process, and each person needs to figure out what they need from the dissolution.  If you are considering mediation for your divorce, then it is important to understand the process and evaluate what it can do for you and your soon-to-be ex-spouse.  To help you fully consider the possibility of mediation for your divorce, this article will walk through many questions that people may have as they explore the process.  It will start with basics and then work its way into specifics on the process.  It will finish with a conversation about the benefits and drawbacks of the mediation process and highlight some scenarios that may make mediation a good idea or a poor idea.  The goal of this article is to help you understand the mediation process to figure out if mediation is the right choice for you.

What is divorce mediation?

Divorce mediation is an alternative dispute resolution process that assists parties looking to get divorced with the negotiations over all aspects of the divorce, from child custody to division of the marital property.  The process is overseen by a third-party neutral called a mediator, who assists the parties in the process. It is party-driven and party-focused, completely voluntary, and confidential.  It can be a formal mediation with both parties represented, or the process can be informal, with only the parties and the mediator.  Because it is party-driven, every mediation will look different; however, mediation always has the same goal—to help the parties find common ground and reach a settlement that works for their case.

How is it different from court?

When considering mediation, one might be wondering how it differs from finalizing the divorce in court.  Mediation is different from a litigated divorce in several ways.

  • Confidential: Confidentiality is one of the hallmarks of mediation.  This means that the discussions that are had in the mediation cannot be discussed outside of the actual negotiations.  This is different from litigation, which will all be kept on the public record. Even if the parties cannot agree at the mediation and decide to move forward in litigation, what was said in mediation and settlement discussions is not admissible in court.
  • Informal: Unlike litigation, which has formal rules for the presentation of evidence and the manner that the parties conduct themselves.  Mediation is more of a meeting structure and the evidence that the parties present do not have to meet the rules of evidence that are required in a trial.  Similarly, mediation can be done without attorneys for the parties, and litigation is usually done through lawyers.
  • Nonbinding: Litigation will produce an order that the parties will need to follow, even if the parties are unhappy with the result.  Mediation is not binding, which means that the parties can choose to stop mediation without a settlement agreement and use other alternative dispute resolution mechanisms or litigation to resolve the divorce.
  • Cost: Litigation can be expensive because the parties will be paying for attorneys, paying for court costs, and the process is often long and drawn out.  Mediation tends to be cheaper because of the speed with which it can produce results, meaningless or no money paid to attorneys.  However, because it does not produce a binding result, it can end up costing more because the parties will need to pay for the next step.
  • Decisionmaker: Mediation gives the decision-making power to the parties, allowing them to see what the options are and pick their resolution from these options.  The mediator is only there to guide the parties, not make a ruling on the case.  Litigation gives the decision-making power to the judge or jury, which then binds the parties.

Other differences separate mediation from litigation, but these are the main options to consider if you are thinking about using mediation for your divorce.

What is a mediator?

Another difference in mediation is the presence of the mediator.  Unlike a judge, the mediator is a guide, not a decisionmaker.  The mediator will be a third party, which means that they will have no interest in the outcome of the case that could influence the way that the parties discuss and negotiate the case.  The mediator will also be neutral, meaning that they do not represent either party or pick a side with either party.  Instead, they help the parties see their position in the divorce and help them evaluate how they may be able to settle.  They do so with their experience in divorce and understanding of the underlying law.

The parties will get to choose the mediator that works with them or the mediation agency that will appoint the mediator.  Mediators usually do not give the parties their evaluation of the case or suggestions for how to resolve the divorce. Instead, they help the parties see what the best options are by asking pointed questions to help them reevaluate their position.  Occasionally, couples may ask the mediator to give them an evaluation of their case in private because it can help them make their decisions.  This is not a guarantee about the outcome of the case, but most divorce mediators have a lot of experience in divorce and family law, so their evaluations will often be accurate.

How long does divorce mediation take?

Mediation will often happen relatively quickly after the court orders it or the parties decide to attempt to use mediation.  Once the parties or the agency has chosen the mediator, the process will be scheduled, and the parties will begin preparation.  Because mediation is not competing with an overwhelmed court schedule, it is often scheduled quickly, and the process is usually completed within a few months. However, this may mean that the parties will need to return to litigation after the mediation, but it could also mean a resolution within a few months.

How do I start the process?

If you are serious about beginning the process of the mediation, you should bring up the idea of mediation with the other party.  You can suggest it and highlight the possible benefits that mediation could bring to your divorce.  In some states, the court may require that the parties make a good faith effort to settle the case before bringing it to trial before the court, so you could also present mediation as your good-faith attempt to reach an agreement.  Remember that mediation is voluntary, so unless the couple has a prenuptial agreement that requires mediation in a divorce, they cannot be forced into mediation.

What if my spouse and I are on bad terms?

Mediation can be helpful for parties that are not getting along with each other.  Because it is a collaborative exercise to attempt to find some common ground to agree on, the parties are often able to see that they want some of the same things for each other and their children moving forward.  Finding that common ground and creating a plan together can give the parties a new perspective and a greater appreciation for the plan moving forward.  If you and your spouse are at odds, mediation may be able to help you see your relationship with clearer eyes and help you both be committed to the plan you create.

The court ordered me to go to mediation.  Do we have to?

As mentioned before, a court may order a couple to go to mediation.  In some states, couples are required to attempt to mediate their case before they bring it to litigation.  This is usually only required in cases where the parties have limited property or childcare issues.  A court may also order a couple to mediate if they signed a prenuptial agreement that had a mediation clause in it.  However, if you have filed a case with the court and the court orders you to go to mediation, you should attend mediation.  If you choose not to, you could face punishments from the court and be forced to attempt mediation again to attempt to settle.  This is the only instance where a party may be forced into mediation.

How do I prepare for mediation?

Preparing for mediation will be similar to preparing for trial in some ways.  Mediation often happens after the discovery phase of litigation, so the parties will often have the evidence and documentation that they need to build their case.  The parties will need to prepare to present their case to the other party and give the reasoning for why they are proposing the outcome they are for the divorce.  This can be done by considering several issues, including:

  • Best Case: An important consideration to make is the best-case outcome for your case in mediation.  This is unlikely to be everything that you would ask for a trial because the collaborative aspect of mediation will require that the parties compromise on some things.  Knowing a realistic top recovery will help temper your expectations and make the best offers.
  • Worst Case: On the flip side, it is important to identify what the worst possible scenarios are for your case.  This will help you understand what the lowest end of your settlement range is.  This requires a knowledge of how your case may resolve at trial and will make a plan with this possible outcome in mind.
  • Opponent’s Case: It is also important to understand what the other party will likely be hoping for, how their case may do at trial, and what their worst-case scenario would be. This will help create a realistic zone of a settlement agreement and help you understand where their offers are coming from.

The parties should understand their case and their opponent’s case well to be fully prepared to create an agreement that can work for everyone and help the family move forward while also protecting their interests.

What do I need to bring to mediation?

You should bring documentation that will help illustrate your goals.  This can be proof of income, costs for childcare, medical expenses, housing expenses, and other evidence that supports what you are asking for.  You should also bring a list of proposed offers with some creative terms to help you settle the case with your spouse.  The short answer to this question is that you should bring what you think will support your case.  Importantly, this is not the place to attempt to disparage the other party, as this is a collaborative process, and mediation will not allow such evidence to be presented.

How does divorce mediation work?

Mediation is often set up for a day or two and is usually arranged in a neutral space, such as the mediator’s office.  The mediation will introduce themselves and the process, and the parties will give an overview of their case, and then they will begin to negotiate until they are able to reach an agreement or decide to move forward with another process. Each one of these steps will be discussed in more detail below.  The mediator will work with the parties to attempt to get them to find some sort of resolution.

What is the introduction?

The introduction is the part of the mediation where the mediator will introduce themselves s to the parties and detail their expertise.  They may share any information that could make it difficult for them to remain objective. Once this has been established, the mediator will explain the process of mediation to the parties and establish the ground rules, such as confidentiality and active listening.  The parties may also have a chance to introduce themselves here, or they may choose to wait until their statement.

What do I share in my statement of the case?

Each party will have the opportunity to share their view of the case and the facts that support their view of the case.  You should present what you would like for child custody and support, spousal support, division of assets, real estate, and debts, and any other provisions that may be necessary.  When it is your turn, you should speak clearly and calmly.  When the other party is speaking, you should remain calm, not interrupt, and practice active listening to help you fully hear what they would like, which could help you change your mind or see another way the case could be resolved.

What happens after the mediator splits us up?

After the opening statements, the mediator will often split up the parties.  This is to gather more information that the parties do not feel comfortable sharing in a joint session and to better understand what each party will need to settle the case.  The mediator will only share information gathered in these meetings if the party sharing the information agrees to it being shared with the other party. The mediator may ask the party questions to help them evaluate their case and come up with creative offers that may help move the case forward.

What kinds of offers should I be making?

You should be making offers that fit with your goals for the case, but they should also be reasonable, given the circumstances.  You should consider both your goals and the potential goals of the other party.  It can also be helpful to identify creative options to potentially get your opponent to agree to something that you want by giving them something creative.  This is where it is important to identify interests—or the factors that are driving the offers and options that you are presenting and the other party is offering.  These interests will help you find ways that you can give them value without detracting from yours.

When does mediation end?

Mediation will end with the parties reaching one of three agreements:

  • Full: The first option is that parties find a way to agree on all of the aspects of the divorce.  There will be nothing else to agree on.  The parties will sign an agreement and the divorce will be finalized through a court order based on the agreement.
  • Partial: A partial agreement is another option for the parties.  This happens when the parties have reached a solid agreement on certain aspects of the divorce, but have some questions that they cannot resolve.  In this case, the agreement will be incorporated into an order for the trial that outlines the issues yet to be addressed and the divorce will be finalized through a trial.
  • None: The final option is that the parties will not agree on any aspect of the divorce.

What if we cannot agree on a settlement? 

There is no penalty for the parties if they cannot agree aside from any financial obligations for the next steps.  A party cannot be punished for refusing to agree to a mediated agreement.  If no agreement is reached, the parties will need to either litigate the case or use another form of dispute resolution to resolve the divorce.  It is also common for parties to not be able to agree in mediation, but mediation starts the process of negotiation and they can settle before trial.  While an agreement is a goal, not reaching an agreement in mediation is not the last chance that the parties may have to settle their dispute.

Can I bring things up from mediation in court or other places?

As mentioned previously, mediation is confidential.  This means that the parties will be required to keep the discussions that happen during the mediation process confidential, and most agreements that are signed as a part of mediation will likely remain as confidential as possible to complete the divorce.  Additionally, the confidentiality will extend to statements made to the mediator in confidence unless permission is given to share.  Finally, even if the parties are unable to reach an agreement, the discussions from mediation are not admissible in court.  This is to encourage the parties to be candid with each other without fear of these statements coming back at them.

Is divorce mediation a good idea?

While divorce mediation does not guarantee an agreement, it does set the parties up to continue discussions and often produces agreements later on.  Mediation can help to keep the parties on cordial terms and helps to create a plan that is beneficial for both parties. The collaboration of the parties to create the plan helps create a renewed sense of commitment to the plan and encourages long-term compliance.  Even if a case ends up going all the way through trial, mediation gives the parties a more realistic look at the potential outcomes of their divorce and helps them prepare for the trial.  So while mediation does not guarantee a result, it can help the parties move forward.  If you are considering mediation, it may be helpful, regardless of the outcome, to attempt to settle your divorce through mediation.

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