It's becoming increasingly common for divorcing couples to shun litigation in favor of alternative dispute resolution (ADR) methods. Of the most used ADR methods is divorce mediation. It involves a third party, known as a mediator, who serves the role of helping you and your spouse reach an agreement. It's different from litigation, where you and your spouse battle each other in court for months. Rather than decide for you, a mediator steers you towards it by assessing your needs. If you and your spouse wish to have representation, you can also include your attorneys.
However, in most cases, this is not necessary.
The level playing field applies to many couples who want to preserve their existing relationships. Plus, it saves time and money.
As long as both spouses are willing to open up about their needs, mediation works.
While you might not think it's the best approach for you, please do not knock it until you try it. You may find that it's what you need to get through some tough issues in your marriage.
As much as mediation is effective, it might not be the best option for you. If you are in an abusive marriage, you are better off choosing litigation. It's much safer as it will not put you in the same room as your spouse without adequate protection. Plus, it reduces the time spent around the abusive spouse.
We will cover why mediation may work for you, how it works and if you should involve your lawyer:
Advantages of Divorce Mediation
Is there any reason why mediation has become a go-to for divorcing couples? Yes. It:
- Saves you time and money: If you and your spouse have a successful mediation, you can avoid litigation. It helps you cut back on money you would have spent on legal fees and discovery. Additionally, you do not have to go through the back and forth of court processes. Instead of spending months in court, you can have a few sessions with your mediator and complete the divorce:
- Is fair: It's easy to leave the courthouse feeling angry at the judge, your attorney, your spouse's attorney and your spouse. That's because decisions are often in favor of the law and the team that argues the best. With mediation, it's different. First of all, the mediator is a neutral party who does not influence the decisions. Secondly, you and your spouse can agree on important aspects of your marriage, rather than letting strangers do so. It becomes easier to reach a compromise that's fair to both of you.
- Is confidential: Once you start litigating, your affairs (literally) become everybody's business. The proceedings will forever be on the record, and other people can access them. The mediator, on the other hand, gets rid of all notes after the mediation. All that remains in the agreement you file with the court. What an easy way to keep your issues private!
Disadvantages of Divorce Mediation
While mediation has its upsides, you also need to consider its shortcomings. It:
- Is not a legal proceeding: You cannot initiate pretrial discovery, and your spouse can lean on this to hide their assets. If you feel that your spouse may result in scheming, you are better off hiring a financial analyst before negotiating.
- Ensures both spouses are on the same playing field: The past will not count during the negotiations. If your partner was unfaithful, abusive, controlling or had any other vice, it will not matter. It puts you at a disadvantage if your partner also wishes to control the agreement.
- Does not follow court processes: Your mediator will take state laws into account when guiding the negotiations. However, if you are not aware of the laws, your spouse can take advantage of you. You can end up signing an agreement that's disadvantageous to you in the future. If you do not have your lawyer present, things may not work out as expected.
How to Prepare for Divorce Mediation
While mediation is a pretty straightforward process, you can give yourself a boost by preparing for it. Here is what you can do:
- Doing some research: Talk to your attorney about what a fair outcome should look like by assessing your needs. Ensure you highlight all issues you want to cover, e.g., child support and property division. It helps you avoid getting sidetracked by items that are not as important.
- Understanding your future needs: How much will you need to keep going after the divorce? Are there any future arrangements you would like to discuss now? Talk to your lawyer or financial advisor about this, and make sure you cover all your bases.
- Ensuring you protect your children: For couples with children, your dependents will come first. You will need to discuss how you will preserve your relationship with your spouse for the children's sake. Do not look at them as weapons but rather as the people who will bear the brunt of your negativity. Protect their needs.
The Mediation Process
Before the mediation begins, the mediator will take you through his preferred approach. While every mediator has their unique way of doing things, they tend to follow the same approach:
This stage is the getting-to-know-you stage. At this point, the mediator will want to know why you are in mediation. You will outline areas in which you agree and those you do not see eye to eye. The mediator will assess your answers and develop a mediation timeline and approach suited to your needs. Be open about any things you want covered to avoid feeling disgruntled in the end.
This next stage can take two or more sessions. If you and your spouse can agree on pertinent details, the mediator may even start this stage during the introductory phase. It's part of building the foundation for you and your spouse to be on the same page.
In this stage, the mediator takes you through general legal rules that apply to your disagreements. For example, if you and your spouse cannot agree on property division, the mediator will review this. They will take you through the state laws and how this would affect your case. You and your spouse can use this information to assess what would be fair to both of you.
Document finding also starts at this stage. You will need to present documents that support the case. For example, if you have a life insurance policy, you will need to provide this where assets are in play. The same goes for tax documents, business balance sheets and other important paperwork. You may find that you do not have all the details required. At this point, the mediator will figure out how to help you piece the puzzle together. As you present this information, the mediator will start getting a picture of your financial health. They will also help you decide if more recovery is necessary before you move on to other stages.
You may feel that you have provided enough documents for the mediation to continue. However, the mediator may increase the sessions to make sure that no stone remains unturned. While this may seem unnecessary to you, it will ensure that both you and your spouse understand what's at stake. That way, you do not end up getting into a contract that works against you.
As you walk into the mediation, you'll likely have decided what you want out of it.
Mediators refer to these motivations as needs and interests.
They often relate to debt division, alimony, child support, child custody and property division. For example, you could walk in asking for child support, and this would be your core interest.
The mediator works to find out what matters most to you and your spouse. This knowledge helps them develop a mediation plan that addresses these needs. Else, you can walk away from the talks feeling like you did not achieve what you needed.
Sometimes, the needs overlap, which is a good thing. For example, if both of you have child support as an interest, you have a higher chance of reaching a compromise. It's up to the mediator to find common grounds and exploit these in favor of the couple. For example, you may want $5,000 in child support, yet your spouse is willing to give $2,000. The mediator's role is to help you reach a compromise, especially if you have limited household resources.
You can raise your needs to the mediator separately or as a couple. Arguing your case alone helps you open up to the mediator on things you may not want to share with your spouse yet. However, it comes at an added cost as the mediator will need to host more sessions.
Additionally, it takes more time as the mediator must repeat your needs to your spouse in a joint session. A joint session allows you to hear your spouse argue their points. Seeing them work with the mediator can instill confidence in you about their commitment to the mediation.
The approach used depends on you, your spouse and the mediator.
Your mediator will be clear on your status, needs and interests. They will outline the documents they have gathered and what each of you has brought up regarding preferred outcomes. All this information will serve as a basis for the negotiation. The mediator will also remind you that a negotiation is not a win-lose situation. Rather, it's meant to be a win-win situation.
Getting to an agreement that seems fair to both parties takes time. First, you need to look at what options are available to you. You will then discuss these possibilities and narrow them down to those that work for your case. A lot of compromises will be necessary on both counts. For example, on child support, your spouse may agree to increase their support to $3,000 from $2,000. In return, they may ask that they get the children every other holiday. Without conceding in some areas, you can hit a dead end. The mediator will be around to ensure that you fight fairly and work to preserve your existing relationship.
If you and your spouse go through the motions and agree on your vital needs and interests, the mediation will be successful. The mediator will guide you on what you have agreed to and ensure you do not have pending questions. If all seems good, they will then create a memorandum highlighting the agreed points. Both you and your spouse will review it and ensure it is per your agreement. You can then use it to create a formal settlement agreement which you can now file with the court.
Most mediators can create a formal agreement. Even so, it's always a good idea to run the agreement by your attorney to make sure you're getting a good deal. Make sure you're okay with the agreement because once you file it in court, you will have sealed the deal.
Lawyers in Divorce Mediation
Mediation often follows an amicable approach and seldom resorts to aggression. However, some circumstances may push you into having an attorney present. Usually, this decision comes down to you, your spouse, the mediator, and your attorney.
If you and your spouse agree not to have any attorneys present, you can avoid having your lawyer in the mediation. It will help you lower the mediation costs and will allow you to speak to your spouse one on one. In mediation, having open communication is important. You might not enjoy this with an attorney present as they may approach the talk from a defensive point.
You may need to have a lawyer present in some cases, though. For example, if your spouse has their attorney present, you will be at a disadvantage. They will approach the talks as a team and can end up swinging the decision in their favor. Another example is if you feel you're unable to fight for what you want. A lawyer can help echo your needs and give you a better chance at getting a good compromise.
In most cases, couples go to mediation alone and don't involve their attorneys. Instead, they have the lawyers on the side for consultation but not at the forefront to argue their cases.
Finding a Mediator
If a lawyer represents you, they can help you find local mediators you and your spouse can use. However, if both you and your spouse have opted not to use lawyers, you'll need to find referrals in other ways. Try and talk to people who have been through successful mediations. These can be friends, relatives or even colleagues who might have some good references. Also, talk to professionals such as therapists, lawyers and financial advisers. They often go into mediation and may know some good family law mediators. It's not always easy to get a good referral. If you need to cast your net wider, you can also try:
- Scouring the internet on finding sites that link to mediators. Most divorce and mediation sites offer such links, e.g., mediate.com
- Contacting family law or mediation organizations that can give you a list of possible candidates. These include adr.org and www.acmet.org
- Talking to local financial professionals, lawyers and therapist organizations that might give you links
- Looking into options available at your local community mediation centre. You may even find that you don't have to spend as much money as you initially thought
- Walking into the local legal aid office and getting some referrals
Please note that you should only work with people who have handled divorce cases. If they have a background in family law, they will be even better candidates. Come up with a list of people you might consider and draft some questions to pose when vetting their suitability for the task.
All the best!