Key Takeaway: Mediation is a shorter route to the conclusion of a divorce when parties are willing to work together and the issues to be resolved are less complex.
A mediation case should take an average of two months, split into 2 – 4 sessions (2 – 8 hours each). However, complications like division of assets, custody, difficult spouses can increase the length to 4 or 6 months. The Marital Settlement Agreement would also be drafted during this period. In all, every divorce is a unique case and will be treated on its own merits.
Depending on the issues you want to be resolved through mediation, you and your spouse can expect to pay between 4 – 16 hours of the mediator's time.
Unless you have gone through a prior divorce mediation, the procedure may seem a little mysterious to you. If you and your spouse have opted for mediation or are thinking of settling the necessary issues in your divorce through divorce mediation, it is important that you have a good grasp of what to expect before, during, and after.
Safe to say that although each divorce has its own merits, this article will explain the process in simple terms and the possible duration.
Mediation is a procedure that allows spouses going through a divorce to make their own choices about the issues in dispute between them. The mediation process is different from the traditional court procedure where the judge decides the outcome of your divorce.
Drafting the Agreement
If you and your spouse are going to opt for mediation, the process is successful if both of you can agree on the issues identified and have an agreement drafted for approval. This agreement is called a Marital Settlement Agreement, and it must be presented to the divorce judge for approval for it to have the backing of the law.
A settlement agreement can be drafted by your lawyer or reviewed by your lawyer if your spouse's lawyer drafted it. Depending on how complex the issues resolved are, you should also have other professionals like your accountant, stockbroker, and trusted advisors review the agreement.
Court Filing and Review
Once the mediation process is finalized and the Settlement Agreement presented to the family court supervising the divorce, the judge will examine the agreement to determine the following:
- Whether the terms are fair to each spouse and the children, if any.
- Are the terms and conditions in line with the state's divorce laws?
- Whether the parties voluntarily entered into the Agreement or there was an element of coercion or undue influence.
- Whether the conduct of the mediator was neutral and fair.
The family court has the power to investigate whether one spouse had unduly influenced or negotiated the terms of the agreement to his or her favor. Corroborative pointers such as having a top lawyer and professional advisory support while the other spouse is handling the negotiations on their own could be scrutinized. The court may hold informal sessions with each of the spouses and together to know if any undue influence has been exerted on the 'weaker' spouse.
If the judge finds that some or all the terms are unfair to one party or irregular, he may order both spouses to rework the identified issues in the agreement. Once your settlement agreement gets the judge's approval, the terms are incorporated into the final divorce decree. The final decree is then issued, and the marriage becomes legally dissolved.
If you choose California to file for divorce, you need to know that the judge will additionally consider if the agreement -
- has resolved the property or asset division in compliance with the California community property laws;
- excludes a spouse from getting the support that is vital to their post-marriage life;
- resolved custody issues in the best interests of the child; and
- resolved alimony and child support issues in line with California laws.
The Waiting Period
The waiting period is the time between when the court approves a marital settlement agreement and when the order becomes absolute (or final). For instance, if the court approves an agreement reached during mediation, there is a waiting period between that approval and the time the order crystallizes into a final divorce decree.
The duration of a waiting period depends on the divorce laws in your state and when the divorce petition was filed.
If the waiting period extends into months, stopgap measures must be discussed. These measures will address issues such as:
- Residential arrangements and the payment for the costs
- Child custody (temporary) and parental responsibilities
- Management of jointly owned business and assets, including expenses and revenue
- Payment of other expenses and debts
The waiting period must be handled with care to avoid causing risk to the approval of the settlement agreement before the judge. This implies that you should be wary of taking too many responsibilities and falling short on any.
While mediation helps to wrap up the divorce process quickly, you should review the waiting period applicable in your state.
How Long Does It Take?
The length of a mediation process varies because every marriage and divorce case has its own merits and complications. For instance, you and your spouse may not be seeing eye to eye on many issues and may find it difficult to reach an agreement. There are also other factors to consider, such as assets, child custody, spousal support, etc.
A typical mediation case without many complications may take a month or two. During this period, you and your spouse may have two-hour sessions with your mediator three to four different times. Because of this flexibility and shorter duration, spouses often prefer to go through mediation than the traditional court system.
How long the mediation process will go depends on various factors. The quicker you and your spouse reach an agreement, the shorter the length of divorce through mediation.
Below are some factors that can affect the length of the process.
Unless there is a prior agreement, it is likely that the more assets you have to divide, the more time it would take to conclude the mediation process.
Also, if you have to decide on the ownership of every little thing, the procedure will naturally be extended to accommodate the debates and decisions. But the process will be less time-consuming if you have just one or two ownership issues to decide on.
As you may have suspected, children complicate divorce and necessarily so. Even in mediation, custody and child support will affect the length of mediation. The process will automatically become more burdensome if you and your spouse are not seeing eye to eye on your desires for custody arrangements.
In any case, you can expect the process to be longer and more sensitive if children are involved.
Willingness to Compromise
Perhaps you are wondering what the mediator will do to ensure the process is truly faster than the courts. The truth is the mediator won't be making any decisions. Rather, the mediator's job is to distill relevant issues, promote understanding of both spouses, and help you both to reach a compromise.
Therefore, the length of the process is still up to you and your Ex to find common ground and reach an agreement.
Mediation is readily an option for amicable spouses who are willing to let the process work. However, there could still be complications in the process. Also, it does not rule out mediation for couples who are having a strong dispute on many issues.
Mediation helps resolve as many issues as possible that would have been tried if included in the divorce petition. This implies that it shortens the duration and the cost of a traditional divorce.
While it may be tasking to ask every couple to get along on every issue during mediation, it is no reason to abandon the process. The divorce mediator is a professional at helping communication and would assist you and your spouse in finding common grounds and concluding on reasonable resolutions.