Divorce Mediation Basics

A step-by-step explanation of divorce mediation: how this popular court alternative works, how to decide whether to use it, and tips for getting started.

Even when parting spouses disagree, a divorce doesn't always have to be a big fight. For many couples, divorce mediation is an excellent alternative to battling it out in court.

What Is Divorce Mediation?

In divorce mediation, you and your spouse meet with a trained, neutral mediator to discuss and resolve the issues in your divorce. Mediation sessions often take place in an informal office setting, but you might also be able to go through your mediation online.

A mediator can help you reach agreement on the issues you and your spouse need to resolve in order to finalize your divorce, such as child custody, child support, and property division. Mediators don't make decisions or offer legal advice, but rather serve as facilitators to help spouses figure out what's best for their situation.

When spouses reach agreement through mediation, most mediators will draft (and possibly file with the court) a divorce settlement agreement.

Why Choose to Mediate Your Divorce?

Although judges often order divorcing couples to participate in mediation before going to trial, you have the option of mediating on your own—either before you file for divorce or at any time after. Mediating your divorce has a lot of advantages over litigating it (fighting it out in court).

  • Cost. Mediation is much less expensive than a trial.
  • Settling the case. Most mediations end in settlement of all of the issues in the divorce.
  • Confidentiality. Mediation is confidential, with no public record of what goes on in your sessions.
  • Freedom. Mediation allows you to arrive at a resolution based on your own ideas of what is fair in your situation, rather than having a solution imposed upon you based on rigid and impersonal legal principles.
  • Advice still available. You can go to mediation and still choose to have a lawyer give you legal advice.
  • Control. You and your spouse—not the court—control the process.
  • Communication. The mediation process encourages communication between you and your spouse, helping you avoid future conflicts.

Successful mediation makes the rest of your divorce easier: Because you've done all the hard work of hammering out the details in the mediation, you can file an "uncontested" divorce. Uncontested divorces are usually less expensive and faster than litigated divorces (divorces where the couple battles in court).

With an uncontested divorce, you'll save money on attorneys' fees and the costs of going to trial. Also, many courts fast-track uncontested cases because everything has been worked out in advance, meaning that a judge will be able to finalize your divorce faster than if you'd gone to trial.

Who Should (and Shouldn't) Consider Divorce Mediation

Mediation can work for many if not most divorcing couples, even ones who have hard feelings and lots of issues to resolve. While mediation is worth trying for most pairs, not all of them belong in mediation. Mediation might not be for you if:

  • You have experienced domestic abuse or fear for your or your children's safety. If you are currently experiencing or recently experienced domestic violence or the threat of violence, mediation isn't for you—you should seek assistance from a lawyer or other qualified source. If there was abuse in the relationship but it was some time ago, you should weigh the pros and cons of mediating carefully. Depending on the circumstances, some who have been abused might find it empowering to meet on the level playing field of a mediation session. Also, most mediators will take precautions to ensure that mediation occurs in safe conditions (for example, by meeting with the spouses separately). Others who have been abused, however, could reasonably find it traumatic to have to mediate or might feel the power or intimidation dynamics are too great—they might choose to have a lawyer do their negotiating for them. Also, some mediators won't take cases that involve domestic violence.
  • Your spouse has a history of being deceitful or untrustworthy. If you suspect that your spouse is hiding assets, wasting funds, or lying, mediation probably isn't worth your time. You won't be able to successfully negotiate unless both spouses are truthful, make full disclosures, and play by the rules.
  • You suspect your spouse wants to delay the proceedings. Because the mediator can't order either of you to do anything, a person who wants to delay the proceedings or avoid paying support can abuse the process by agreeing to mediation and then stalling the process.
  • One of you is claiming fault or has hired a lawyer. When a spouse is claiming that the other is legally at fault for ending the marriage (a claim you can't make in all states), a successful mediation is less likely—but not impossible. If your spouse has already hired a lawyer, you should strongly consider hiring one, too. Your lawyer will help you decide if participating in mediation is worth it based on the facts of your situation.

For divorces without those kinds of circumstances, divorce mediation can be a great option. It's especially effective when both people show up open to compromise.

Don't reject mediation just because you and your spouse see a particular issue very differently—in other words, don't give up before you've begun. Mediation is a powerful process, and many cases that seem impossible to resolve at the beginning end up in a settlement.

The Divorce Mediation Process

Although every mediator will have their own style, the general process of mediation is pretty consistent.

Before Mediation

Before the mediation, you might speak with the mediator or an assistant and provide background information about your marriage, your family, and the issues in your divorce. Or your mediator might have you fill out a questionnaire. The mediator might also ask you to write up a "mediation statement" outlining your basic information and the divorce-related issues you think need to be resolved.

The mediator might also ask you to sign an agreement that says that you'll keep what's said in the mediation confidential and that you understand that the mediator can't disclose any of what goes on in your session in court.

During Mediation

Unless you do online mediation, mediation sessions are usually held in a conference room or comfortable office. Some mediators meet with everyone in the same room for the entire mediation, while others might break the spouses out into separate rooms for private discussions. For couples who have attorneys with them at mediation, the mediator might ask to meet privately with both sides before beginning the session.

After the mediator takes care of housekeeping issues such as the agenda for the session, you'll probably 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 might ask some questions to clarify or get more information. Your mediator might repeat or summarize your points to confirm that they understand what you're trying to say.

The next step will be to figure out what issues you and your spouse really agree and don't agree on.

The two most important things you can do to reach an agreement are to:

  • be open to compromise and
  • listen to (and try to understand) your spouse's point of view.

Understanding your spouse's position doesn't mean you have to agree with it. But it's possible that, once you've listened closely to your spouse's concerns, you'll have new ideas about how to resolve disagreements.

Completing the Agreement

If you finish negotiations and resolve some or all of your divorce-related issues, the mediator will write an agreement and, in many cases, a parenting schedule or parenting plan. Your settlement agreement will include only the topics that you resolved during mediation. (If you aren't able to agree on all the topics, you'll have to either agree on the unresolved issues later or ask a court to decide them after a court hearing.)

Some mediators will help you file divorce your paperwork with the court; others won't. (You'll want to ask potential mediators about the scope of the services they provide.)

If the court approves your settlement agreement, the agreement will become part of the final divorce decree. You can then enforce the terms of the settlement agreement just as you would any other order from a court.

How to Get Started With Divorce Mediation

Unless a judge orders you and your spouse to attempt mediation, divorce mediation is voluntary. That means you and your spouse will have to agree to mediate. If your spouse is on board, your next step is to find a knowledgeable, skilled divorce mediator.

When a judge orders mediation, you meet with a court-appointed mediator or, if the court allows it, a private mediator of your own choosing. If you're trying mediation on your own, though, you and your spouse will have to find a mediator you both agree to. One way to possibly avoid argument over the choice of mediator is to research potential mediators on your own and pick three that you'd be willing to hire. Then you could present the list to your spouse and let them make the final choice.

Personal recommendations are a great way to find qualified mediators. For example, you could ask a marriage counselor, a lawyer, or friends who've been through a divorce for referrals. Other sources for mediator referrals include:

  • Online mediation services. If you're thinking of mediating your divorce online, finding a mediator is as easy as deciding on a service provider.
  • Your local courthouse. The court clerk might have a list of court-appointed mediators who have practices of their own and are willing to take on private clients.
  • Your state court's administration office. The office that oversees all the courts in your state might have a list of approved mediators. Check your state judiciary's website or give the office a call.
  • Your state or county bar association. The "bar" is a professional organization of lawyers. Your state or county bar association might maintain a list of qualified mediators. (Mediators recommended by the bar probably are lawyers—more on that below.)
  • National mediation or family law organizations. The Academy of Professional Family Mediators, the National Association of Community Mediation, and the National Academy of Distinguished Neutrals are just a few of the many organizations where you can find mediators.

If you make a list of potential mediators, you'll want to research each person's experience and specialty. At a minimum, you should make sure that they are experienced in divorce mediation (and if you have children, cases involving child custody and support).

Mediators can have a variety of backgrounds—for example, they can be lawyers, CPAs (certified public accountants), social workers, or other people with specialized training. The best mediator for your divorce will have experience helping spouses who face issues similar to the ones you and your spouse are dealing with.

Many mediators will agree to meet with you in person or on the phone to explain their process and answer any general questions you have. Before you talk with potential mediators, take a look at their websites and make a list of any questions you have.

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