Question & Aswers about Divorce Mediation

What is Divorce Mediation?

What is Divorce Mediation?

Divorce mediation is a process by which you and your spouse can negotiate the terms of your separation or divorce in a cooperative, non-adversarial setting, with a minimal investment of time, money, and emotional energy. The mediation process results in a settlement that becomes the basis for your legally binding separation or divorce agreement.

You will meet with a professional mediator who is impartial and nonjudgmental. The mediator will help you create a unique separation agreement so that you can plan for the future, and if you have children, so that you can develop or continue a good relationship with them.

In the process of the mediation, you and your spouse or partner will learn how to recognize and overcome impasses and reach decisions regarding support, division of property, and parenting arrangements-without court-imposed delays and without becoming enemies.

What are the advantages of mediation?

Mediation saves time, money, and emotional energy. It avoids the cost and time of adversarial litigation. Because the mediator is in control of the process, anger does not escalate and real communication can begin. As you and your spouse deal directly and openly with each other, you gain negotiation and communication skills that will help your future relationship to be less angry. If you have children, this can be a tremendous advantage. Mediation emphasizes the future and provides closure to painful and angry conflict of the past. Let’s take a look at some specific advantages:

  1. Cost and time-efficient: Mediation is a cost- and time-efficient way to obtain a divorce. Because you know the fee involved, and because you can decide how quickly you want to proceed, you can control the total cost; there are no surprises. Unlike divorce litigation, you are in control of the process, and you don’t have to wait for space on the court calendar in order to proceed. Attorneys’ visits are minimized.
  2. Future-focused: In mediation, as contrasted to litigation, each of you is empowered to control your own future, and since you have shared in the negotiation process, you are more likely to abide by the agreement.
  3. Child’s best interests: Divorce mediation provides a neutral setting in which to come to an agreement that meets each partner’s and child’s unique needs. Mediation allows you to truly focus on your child’s best interests rather than becoming embroiled in a win/lose battle that litigation often results in. Mediation reassures your child that the two of you can still work together to care for him or her.
  4. Open communication: Unlike divorce litigation, mediation encourages open communication. Mediators help couples learn new ways to resolve conflicts and develop a better understanding of each other’s realistic needs.
  5. Creative parenting arrangements: Instead of having to adopt an arbitrary, court-ordered schedule, you can thoughtfully develop your own parenting arrangements, taking into account all the scheduling demands each of you must accommodate.
  6. Agreement where state law doesn’t recognize the relationship: In the event of an invalid or “common-law” marriage, which is not recognized in many states, your mediated contract will be enforceable in court. If you are ending a same-sex committed relationship, a mediated contract is sometimes enforceable in court.
  7. Privacy: Issues you would prefer kept out of court-for example, financial details or custody issues-can be resolved in a private, neutral setting.
  8. Closure: Mediation helps heal the pain of loss and lessens anger and bitterness. As you work together to forge better individual futures, there is a lessening of conflict, an emotional processing of separation and loss, and the beginning of acceptance and closure.

Are there drawbacks to mediation?

We don’t think so, but we are aware that there are a few areas where concerns have been expressed.

Because mediators do not subpoena documents and examine witnesses, some people have expressed concern about the lack of full disclosure of financial information. As mediators, we always insist on full disclosure, and we make clear in the first session that the mediation will be terminated if information is withheld. Also, we remind the couple that any agreement will be nullified by the court if important financial information has been withheld.

Another criticism that has been made is that mediation is not appropriate when there is too much of a power imbalance, when in some way one of the spouses might be stronger than the other. A good mediator will recognize if one spouse lacks assertiveness or knowledge, and will empower or inform him or her in a variety of ways.

There are a few extreme circumstances where private mediation would not be an appropriate way to negotiate a fair settlement:

  • If there is intimidation or fear of violence
  • If there is a recent history of domestic violence or child abuse
  • If one of the parties has severe intellectual or emotional limitations

See also Question 26 in this chapter: When should I refuse to mediate?

What is the difference between mediation and arbitration?

Both mediation and arbitration are alternative ways to avoid litigation. In mediation, you make the decisions with the help of the mediator. In arbitration, a third person or persons, after listening to both of you, makes the decision for you. Whether decisions are made through litigation, mediation, or arbitration, most states insist that a judge review and approve all decisions that affect children, since the state is responsible for protecting the best interests of the child. A mediator provides relevant information, assists in developing settlement Options, and helps you and your spouse work together, but you and your spouse make all the decisions. Judges seldom reject what non-abusive parents, in good faith, have created in mediation. In arbitration, depending on your prior agreement, the arbitrator’s decisions may or may not be binding with respect to property. States vary significantly as to whether arbitrated decisions regarding custody, child support, and visitation may be binding. Sometimes the mediated agreement includes a clause providing that if certain problems arise, the couple will return to mediation to work out the details, and if they cannot agree in mediation, they will submit to binding arbitration. Most mediators encourage couples to limit what can be arbitrated and to include guidelines regarding what the arbitrator should consider.

Do we need mediation if we have no joint property and no children? Why can't we just buy a do-it-yourself book?

Not only can you buy a do-it-yourself divorce book, but in Arizona and Utah you can file for your divorce at an automated kiosk at the courthouse, similar to a bank’s ATM machine However, there are often important legal issues that can be overlooked if you go it alone. If you work with a mediator, you will be certain that your agreement is complete and legally binding, and you will still keep your expenses to a minimum. In our experience, there are always details to be reviewed that are easily overlooked and that can cause problems later, such as debts, apartment leases, title complications regarding property, taxes (who pays, who gets the refund, who is liable if there’s an audit), health benefits, or even the timing of the divorce. Finally, a mediator can help you through any tough spots, and a book or an ATM machine can’t do that.

How do I know if mediation is right for us?

If you are interested in mediating your divorce but unsure if it’s the right way for you to proceed, the best course of action is to participate in a mediation session or two and see how you feel about the experience. You can ask questions about your situation during these sessions, and you will get useful answers from the mediator. Since you pay only for an hour or two of the mediator’s time, this is an inexpensive way to make your decision, and you will obtain some information that will prove useful no matter how you proceed. See also Question 2: What are the advantages of mediation?; Question 3: Are there drawbacks to mediation?; and Question 26: When should I refuse to mediate?

What happens during the mediation process?

Your mediator will provide information, establish ground rules, help you develop choices, and keep you future-focused as you negotiate the terms of your separation agreement. The mediator will stress that you can make any settlement you choose, and, as needed, will explain how the laws, guidelines, and norms of where you live have an impact on your decisions. If you need a consultation to help you clarify your position in the course of the negotiations-with an accountant, an appraiser, a child psychologist, a psychotherapist, or some other expert your mediator can help you make those arrangements. Your mediator will outline the decisions you need to make in Order to create a separation agreement. This will help you structure your mediation, deciding on the terms of the agreement item by item. These terms will be written up by the mediator as an unsigned document called a memorandum of understanding. Based on the memorandum, a separation agreement will then be drafted. You will be encouraged to go over the agreement with a review) attorney, who will give you feedback from the point of view of an advocate for you alone. You can use this opinion to evaluate and possibly modify the settlement through an additional mediation session before you sign the final agreement. Then your state’s procedures for filing for divorce will be followed, the court will process the documents, and you will be notified that you are officially divorced.

Will the mediator try to get us back together?

No. Recovering a relationship is the goal of couple’s therapy, not mediation. Neither those mediators who are psychotherapists nor those who are attorneys will try to get you back together. Mediators are focused solely on making the process of separating as amiable as possible. We are neutral and concrete, concerned with defining issues and facilitating reasonable solutions so that you can put closure to the marriage and move on to separate futures. If you are not sure you are really ready to get a divorce, consider meeting jointly with a couple’s therapist for a few sessions to see if you and your spouse can make progress toward resolving your problems.

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