Divorce mediation is an alternative dispute resolution process that allows divorcing couples to try and negotiate a mutually acceptable agreement with the help of a neutral mediator.
A mediator does not have the authority to make decisions. Instead, a mediator works in a neutral capacity and attempts to facilitate agreement on any disputed financial or co-parenting issues.
The mediator will help both parties to understand the priorities and issues involved in the divorce, clear up any misconceptions, and possibly offer ideas for reaching a resolution.
It’s important to understand that the mediator does NOT represent either party. Their primary goal is to facilitate agreement – NOT to protect you from being taken advantage of.
That’s why it’s almost always a good idea to work with a consulting attorney that can look out for your interests.
The benefits of mediation
There are lots of good reasons to consider using mediation when you’re going through a divorce:
- It is confidential. There is no public record of what goes on during the mediation process.
- Mediation typically costs less than litigation or collaborative divorce.
- Lawyers have a much more limited role
- Mediation is less adversarial than litigation which reduces the animosity and can help preserve a working relationship.
- Mediators are trained in counseling can assist both sides in acknowledging feelings but not allowing feelings to control the decision-making process.
- You and your spouse have significantly more control over the process and the outcome than when the court is involved. This creates more durable agreements.
- You have a lot more input so that you can feel better about arriving at a final agreement about what is fair rather than having a rigid set of rules guide your fate.
- Mediation is much less emotionally harmful and better overall on children. Children hate to see conflict between their parents and by showing you are working together, you can set an example and minimize any repercussions.
- You still have the option of going to court. Choosing mediation does not in any way cause you to lose your right to litigate your divorce in front of a judge. Anything that took place during mediation will remain confidential (except for signed written agreements and financial affidavits).
- Mediation may still be an option even when domestic violence is present in a marriage. Whether mediation is appropriate really depends on the extent of the domestic violence and the imbalance of power. In some situations, you may want to have your attorney attend the mediations with you if domestic violence was an issue during the marriage.
- A mediator can’t order you to do anything. All that’s required to make a divorce mediation successful is for both people to show up willing to negotiate and open to compromise.
How to prepare for mediation
Mediation is voluntary in almost all states, so both spouses must agree to go this route.
Once agreed upon, the key to a successful mediation is preparation.
Documents you’ll need
You can’t control all parts of a divorce mediation, but you can take steps that will help the process proceed as smoothly and as quickly as possible.
As part of this process, you will need to gather several documents, including:
- Federal and State Tax Returns
- Pay Stubs
- W-2s and/or 1099s
- Partnerships & Other Business Interests Valuation. Copies of corporate tax returns for the previous three years if one or both spouses have a business.
- Real Estate Property Valuation
- Vehicles, Boats, Trailers Valuation
- Savings, Checking, Money Market and CD Accounts including balances
- Non-Retirement Investments such as Stocks, Bonds, Secured Notes, Mutual Funds
- Current balance statements for all children’s accounts such as CD’s, 529 plans or other custodial college savings plans.
- Make, model and year of all vehicles owned and a statement of the private party value for each as listed on Kelly Blue Book (www.kbb.com).
- Information of any pending civil lawsuit claims in which either or both spouses are a listed plaintiff(s).
- Executive Compensation – Stock Options, RSUs or Other Executive Comp
- Retirement Accounts and Pensions
- Annuities, IRAs, Deferred Compensation
- Life Insurance (Whole Life Policies)
- Personal Property–approximate value of the contents of all homes owned, all jewelry, art, antiques and other collectibles of significant value. Some items may need to be specially appraised for value if spouses are not able to agree on their value.
- Accounts Receivable & Unsecured Notes
- Current balance statement for all student loans.
- Statements for any other private loans, either verbal or with a written note, in which one or both spouses are debtor(s).
- Real Estate Loans
- Credit Cards and Revolving Credit
- Other Loans and Debts
- Copy of marriage certificate
- Copies of any trust documents
- Copies of all pre-marital, and/or marital agreements in effect such as any pre or post-nuptial agreements.
- Copies of any wills executed during the marriage.
If you’re concerned that a spouse is less than forthcoming with all of this information, this is one of the issues a mediator can address in a non-confrontational way.
Also keep in mind that in many states, a financial affidavit is required to be submitted as part of the final settlement agreement, so whether you mediate or not, you will probably end up having to pull all of this documentation together anyway.
Set goals and priorities
Once you have all of your financial information in hand, you have to decide what you’re going to do with it.
This will require trying to determine what your personal priorities are and what you want to get out of the divorce. Keeping the family home may be a top priority, especially when children are involved.
But what are you willing to let go of in exchange for the family home?
You should also create a post-divorce budget, so you have a clear indication of what you will need to live. That will help you to decide what you need to bargain for.
Now is the time to think about alimony, child support, and a parenting plan – not only for negotiation purposes, but for practical purposes as well.
Keep in mind that the courts will look closely at the needs of any children and will always rule for what is in their best interests.
Although your marriage is ending, your parenting duties will not.
Part of any discussion should be about what it will take to provide a loving and stable home environment and how to best navigate the changes that are sure to come.
A big part of what a mediator will do is put lines of communication in place and help parents establish boundaries regarding their children.
Finding a Divorce Mediator
This step is critical. You need to find a mediator who is not only competent, but somebody that both sides can trust.
There are several avenues you can pursue to find the right mediator for your situation.
If you are working with a family law attorney, they will be able to refer you to local mediators.
If you are representing yourself, you can ask for recommendations from financial advisors, therapists, spiritual advisors or friends who have used a mediator for their own divorce.
Contact national mediation or family law organizations, including the Association for Conflict Resolution (www.acrnet.org), the Association of Family and Conciliation Courts (www.afccnet.org), and the American Arbitration Association (www.adr.org).
If money is an issue, there may be legal aid resources in your community that you can access.
Contact various non-profits to see if your case may be appropriate for low-cost community mediation.
Ideally, a mediator will be an experienced family law attorney who has worked on several hundred divorce cases. Others may have a psychology degree, and some may have both.
Some focus on financial issues, some focus on child custody mediation, and others are trained in facilitating conflict negotiations.
Keep in mind that mediators are neutral resources and they are not participating to take a side and force you or your spouse to accept terms that you don’t want to.
Both you and your spouse should talk to several mediators until you both find one who is agreeable to both sides.
Be sure to ask if the resource has taken mediation courses, and how much training and experience they have.
Also ask if they are certified in basic mediation, family mediation, and/or any other areas.
The divorce mediation process
Every mediator and mediation process is a bit different, but they generally follow the same path.
Once you and your spouse agree on a mediator, the mediator will contact both of you to gather information about your marriage, what issues you are facing and your financial information.
At the first meeting, the mediator will set the stage with an opening statement about what you can expect in the process and may ask you to sign a confidentiality agreement that says you’ll keep details of the mediation private and that you understand that the mediator can’t disclose any of what goes on there if there’s a court proceeding later on.
At the same time, the mediator will try to make you feel comfortable by establishing a rapport with both you and your spouse.
After the mediator has gone over the basics, both spouses will be given a chance to speak and the mediator will ask questions to clarify any issues and to get more information.
The mediator will take great care in trying to make sure he or she understands all of you and your spouse’s points.
You’ll get a chance to make a short statement about your situation, as will your spouse.
After you’ve each had a chance to speak, the mediator is likely to ask some questions to clarify or get more information.
The mediator may also reflect back what you’ve said, to be sure that both the mediator and your spouse have understood all of your points. The same will go for your spouse.
Sometimes, framing issues is done in separate and private sessions, depending on the spouses and how the mediator likes to work.
Once the three of you have a sense of what needs to be accomplished, you, your spouse, and the mediator will plan how you’re going to accomplish it.
More information may be needed, and the mediator will ask you to bring this information to the next session.
As a way to build consensus, the mediator may suggest you deal with simpler issues first. This creates trust and helps to encourage compromise.
The mediator will help brainstorm options, keep you focused and encourage an exchange of ideas.
For your part, you must remain open to compromise and be willing to listen to what is important to your spouse. You don’t have to agree, but mediation works best with a full understanding of issues and priorities.
After negotiations are completed, the mediator or one of the attorneys will draft a settlement agreement and after you both sign off, it will be incorporated as part of your divorce paperwork that is presented to the courts.
How long does divorce mediation take?
Every case is different, but a typical divorce mediation usually takes several sessions over three to six months. It’s not uncommon for more complex cases to take significantly longer.
The two biggest factors of how long it takes to complete divorce mediation are how well you prepare (do your homework!) and whether both parties are open to compromise.
How much does divorce mediation cost?
It varies, but most mediators bill either by the hour or by the session.
Some may charge a set-up fee as well as the mediator gathers information and works to frame the issues.
In most cases, costs are shared between the two divorcing parties.
Mediators in private practice can charge anywhere from $100 all the way up to $1,000 per hour, but most fall in the $100 to $300 per hour range.
You need to ask about fee structure as part of your due diligence efforts.
Community-based divorce mediation offered through an agency will be much less or possibly even free. Keep in mind that if you cancel, you may still be charged for your session. Court-ordered mediation is typically low-cost or free to couples.
If spouses are able to reach an agreement, there will also be a charge for drafting the marital settlement agreement and other related documents as well.
Some couples work through all divorce-related issues in one session, while others may meet multiple times before reaching an agreement.
The amount of time you spend in mediation depends on how well you communicate and what issues you need to resolve.
What is the difference between mediation and collaborative divorce?
Mediation and collaborative divorce are both consensual dispute resolution methods. There’s a lot of similarities in that the primary objective is reaching a mutually acceptable agreement without court involvement.
This gives you a greater degree of control and focuses on win/win solutions.
There are also some important differences.
With a collaborative divorce, you and your spouse each have your own collaborative attorney and divorce coach, and there is also a neutral financial specialist. All members of the team (clients and professionals) commit to helping you and your spouse settle your case without litigation.
If you and your spouse cannot reach agreement and the negotiations fail, then you will have to start your divorce process over from scratch with new attorneys, and this can be very expensive after you’ve already invested in the collaborative process.
While this may seem like a negative, the benefit is that everyone is fully committed to reaching an amicable resolution.
A collaborative divorce may involve other professionals as well, such as a child specialist.
What is the difference between mediation and litigation?
The difference between mediation and litigation is simple: mediation attempts to keep divorcing couples out of court, whereas litigation uses court as the framework for resolving disputes.
With mediation, you and your spouse attempt to reach agreements with the help of a neutral mediator.
Litigation, on the other hand, tends to be a more attorney-driven process.
What is the role of a lawyer in mediation?
If you decide to pursue mediation, you should at least spend some time up front discussing the facts of your case with a lawyer and learning how family law in your state applies to your case.
This way you will have a general understanding of the legal concepts and constraints.
After a draft settlement agreement is created and prior to signing off on a final agreement, it is smart to share this information with your attorney to make sure it is sensible or places you in a financially vulnerable place.
After the final settlement agreement is drafted, have your lawyer read it to be sure the written version is consistent with your understanding of the terms.
Most mediation sessions involve just the divorcing parties and the mediator.
This keeps costs down and ensures that you and your spouse do the talking and make the decisions instead of attorneys who may be overly zealous in protecting your interests.
If you attend an initial session and determine you can’t state your position clearly or stand up for yourself alone, then you should consider bringing your lawyer to later sessions.
Just know that this does change the dynamic quite a bit.
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