Divorce Mediation 101: A Quick Guide to the Divorce Mediation Process

As court systems become more and more backlogged with cases and the cost of legal representation continues to increase, divorce mediation has continued to grow in popularity as an alternative to the court process for divorcing couples. Divorce mediation involves the use of a neutral third party to facilitate and guide a couple in deciding what's best for all parties involved. This guide will walk through an overview of the mediation process, the key steps in getting started with a mediator, and the benefits associated with using mediation to complete the divorce process.

What is Divorce Mediation?

Divorce mediation is an alternative to the traditional divorce litigation process. It involves both parties coming together to decide on all of the major issues of the divorce with a neutral third party known as a divorce mediator. The mediator does not make decisions for the couple but helps guide the couple through the process in a positive and constructive manner. While it does not work for every situation, mediation is a less contentious, more cooperative option for couples who are willing and able to participate and come to a decision together. Many couples choose divorce mediation because it is a quicker, less costly, more amicable process than going through the courts. The goal of divorce mediation is to arrive at a mutually satisfying, legally binding agreement that takes into consideration the needs and desires of both parties. Assuming the divorce mediation goes smoothly and there are no major disagreements, it is possible to get a divorce without ever having to step foot in a courtroom.

If a couple chooses divorce mediation, it does not mean that they have given up their rights to go to court. If either party is not satisfied in mediation, they can stop at any time, retain separate attorneys, and turn to a court to have a judge decide the issues. Whatever occurs during the mediation will remain confidential, so the parties can start fresh. For more information about the full divorce process and the court's involvement, please see the guide How to Get Divorced.

What are the Benefits of Divorce Mediation?

There are many benefits to using mediation to complete a divorce that make it an attractive option for many couples. The most common reason that couples choose mediation over litigation is that the expense of mediation is much less than traditional litigation. The parties only need to hire one individual to act as the mediator rather than each having to hire an attorney to represent them in court. Another main reason many people choose divorce mediation is the amount of control it affords them. When using litigation, all of the decisions regarding the future of the family are in the hands of the judge. The judge may be a professional, but they can never know the family's situation as fully as the members of the couple know the situation. When the parties have more control over the outcome, it is easier for them to stick by any agreements they reach during the process, knowing that their voices were fully heard and they had input on the process and outcome.

The worst aspect of a divorce for children is the conflict between the parents. The outcome is traumatic enough for them, but it can be beneficial for children to know that their parents are working together to make decisions and will not put them in the middle during a protracted and contentious legal battle. Mediation allows the couple to make decisions regarding the custody and visitation of their children. The parties know their children and their situation better than any other individual, and so can make the best decisions for the sake of their children. Mediation also minimizes the emotional toll of divorce. The way the marriage ends impacts the way the members of the couple have relationships with each other, as well as new partners, in the future. Using a mediator to help with communication makes it easier for the couple to move forward and accept the separation, rather than turning hurt and anger into a long and expensive court battle. A mediator trained in counseling can assist the parties in acknowledging their feelings without allowing their feelings to control the decision-making process.

How to Prepare for Mediation?

There are several important steps the parties can take to be sure they are prepared for the mediation process before it even begins. First and foremost, the couple should pick a qualified and experienced mediator. They should research to select a mediator who has the proper experience and qualifications. Most states offer certification programs to mediators and many mediators specialize in handling particular issues, such as high net worth couples, LGBTQ couples, or immigrant couples. A good mediator will create a stress-free environment and assist both parties in reaching a fair and reasonable agreement on all of the issues in their case.

It is also very important to come to mediation with a list of all assets and debts the couple has, both financial and otherwise. This can include bank accounts, mortgages, vehicles, credit card balances, valuable property, retirement funds, etc. The mediator can only help if they have the full picture of what is going on and what is at stake. The mediator will help guide the couple and advise them on what additional information they need, but having a list of debts and assets is a good place to start.

The parties should also try to set goals before they get started with mediation. They should think about what they actually want at the end of the divorce and go into the mediation with a clear set of goals for the process. They should each decide what is most important to them and what they are willing to compromise on. For example, if the couple has children, it is best to think ahead of time what custody situation might be best for the family.

Finally, the parties should prepare themselves to cooperate. Divorce mediation is designed to be a peaceful, non-adversarial alternative to litigation, so it is important that both members of the couple go into it ready to be respectful and participate in a productive discussion. Mediation is not the time or place for acrimonious arguments and airing out old grievances.

How Does the Mediation Process Work?

A divorce needs to resolve three primary questions:

how to divide assets and liabilities;
how to meet the financial needs of the family going forward; and
if the couple has children, how to share parenting rights and responsibilities.

Mediation may also address any number of issues relevant to making the divorce workable, such as how to get separated, when to introduce new partners to children, and planning for college. The mediator orchestrates the process for discussing and resolving these issues, while the parties are responsible for making the decisions. The mediator will generally start by describing, in detail, the process they will use to guide the parties through this decision-making.

Getting started

After the mediator reviews the basics of the mediation process, the parties each get a chance to make a short statement about the situation. The mediator will ask questions to clarify or get more information, as they also reflect on what the parties have said, to be sure that both parties understand each other's points. The mediator then helps the couple identify where they already agree and where they need to do some work to reach understanding and agreement. Once the mediator and the parties have a better sense of what needs to be accomplished, the mediator will help the parties make a plan on how to accomplish that. Most often, the parties will need to gather more information, especially as they deal with complicated issues like the division of property, bank and retirement accounts, and parenting time. The mediator will help the couple figure out what information they need and get the parties to commit to bringing certain things to their future mediation sessions.

Negotiating an agreement

When the negotiations begin after the initial mediation session, the mediator helps the couple tackle the easiest questions first, and then guides them towards the issues that are more contentious and will require more compromise. Answering easier questions builds trust and encourages compromise when it comes to the more difficult issues. As the parties negotiate, the mediator helps them stay on track and brainstorm options, encouraging the parties to express their opinions, positions, and what is most important to them. The mediator focuses on helping the parties listen to each other in ways that make a resolution more likely.

Completing the agreement

Once the negotiations have been done and the parties have resolved all of their pending issues, either the mediator, the parties, or an attorney hired by the parties will draft documents to record the decisions they have reached. Common documents that are drafted include Divorce Agreements, Child Custody Agreements, and Child Support Agreements. These documents are incorporated into the other divorce paperwork and become part of the final divorce judgment. This means that they are enforceable by a court if one of the parties doesn't follow through and do what the agreements say they will do.

Final Takeaways

Divorce mediation can be an excellent alternative to court litigation for couples that want to focus on preserving their working relationship going forward, maintaining control over the outcome, and decreasing the expenses associated with divorce.

Divorce mediation involves the divorcing couple hiring a neutral third party, known as a mediator, who will help facilitate their communication and guide them towards reaching agreements to finalize their divorce. The main goal of mediation is for the parties to arrive at a mutually satisfactory agreement that is legally binding and settles the issues related to the divorce.
There are many benefits associated with using mediation instead of litigation:

With mediation, the parties can lower their expenses by only hiring one mediator rather than separate attorneys;
The couple has more control over the outcome without having to leave it up to a judge; and
For couples with children, they can work together for what is in the best interest of their children without animosity.

The parties should prepare ahead of the mediation by picking a qualified mediator, making a list of all of their debts and expenses, and getting ready to compromise.
The mediation moves through several steps to resolve the main issues of the divorce:

First, the mediator introduces the process;
Second, the parties each have a chance to make a short statement about the situation and their goals;
Third, the mediator helps them identify their goals and the issues that must be resolved;
Fourth, the mediator helps the couple make a game plan for how they will reach their goals and what more information is needed going forward;
Fifth, the mediator guides the couple through negotiations, starting at the easy questions and moving to the more challenging questions, until all of the issues are resolved; and
Finally, the mediator, or another party, writes up an agreement that summarizes the parties' decisions, and then this agreement is incorporated into their final divorce judgment.

About the Author: Malissa Durham is a Legal Templates Programmer and Attorney at Wonder.Legal and is based in the U.S.A.