Divorce Mediation FAQ

How to create a divorce agreement with the help of a mediator -- without going to court.

Questions

Why Is Mediation Better than Going to a Lawyer—Or Is It?

Mediation is a process where couples meet with a neutral third party (mediator) with the goal of creating a divorce agreement that pleases both parties. Mediation is almost certainly going to cost less money and take less time than each spouse hiring an attorney to facilitate the agreement. The purpose of mediation is for both spouses to feel like they have an opinion in the final divorce agreement, which often doesn’t happen when attorneys and judges are involved.

Although mediation has many benefits, there are some situations where this type of alternative dispute resolution will not work. If you and your spouse lack communication, one spouse is unwilling to mediate, or, if there is a history of domestic violence, mediation may not be appropriate for your case. Attorneys may cost a little more than trying to settle your divorce on your own, but in most situations, lawyers can advocate for your best interest while also creating an agreement that works for both spouses.

Even in cases where you and your spouse agree that mediation is the best path to follow, you may want to consider hiring attorneys in a limited capacity to consult with you outside mediation. Many mediating spouses find it helpful to consult with an experienced attorney throughout the process to ensure the final agreement is fair and in your best interest.

For more information on whether divorce mediation is right for you, see Will Divorce Mediation Work for You?

What Is the Difference Between Court-Ordered Mediation and Private Mediation?

Court-ordered mediation is a mandatory mediation session ordered by a judge or court in a divorce proceeding. If a judge orders mediation in your case and you don’t attend, you may face penalties, like contempt of court. The court will assign a date for your court-ordered mediation, meaning you don’t have control over the schedule. Typically, court-sponsored mediation is reserved for couples dealing with child custody or parenting time disputes (but may also help couples resolve pending property or financial issues.) At the end of court-ordered mediation, the court-selected mediator will provide a written report to the judge to explain the progress of the case.

Private mediation requires both spouses to agree to participate, and both must agree on the mediator who will facilitate the sessions. Costs vary depending on the private mediator that the couple selects. Some mediators require an hourly fee and others charge per-session. Couples who participate in private mediation will have the opportunity to discuss child custody, visitation, support, and property division issues and anything presented in the session will remain confidential and can’t be used by either spouse in court if you can’t reach an agreement.

How Do Mediating Spouses Protect Their Legal Rights?

One of the best ways to protect your legal rights is to hire an attorney to attend the mediation session with you. If you can’t afford to hire a consulting attorney for the entire mediation process, you might consider meeting with a family lawyer before you sign the mediation agreement. The lawyer will help you understand the details of your agreement and will also inform you if the final contract is in your best interest.

Couples can also protect their legal rights by doing independent research before attending the mediation session. Although helpful information is abundant online, it’s always best to use caution when trusting the internet. If you still have questions after completing your research, consider meeting with an attorney to get accurate answers to your questions.

Does the Mediator Meet with Both Spouses Together or Separately?

It depends on the mediator in your case, and this should be one question you ask potential mediators before deciding who to hire. Some mediators prefer to hold the session in one large room with both spouses (and attorneys) present. Including all parties in the same session often helps eliminate communication errors and allows the mediator to direct the conversation towards a remedy. On the other hand, some mediators prefer to keep each spouse in a separate room and act as a go-between—especially if there is a history of substance abuse or domestic violence.

How Much Does Mediation Cost?

The cost of mediation depends on a variety of factors. Court-ordered mediation is typically low-cost or free to couples. If your community offers a low-cost or sliding-scale mediation organization, the costs will depend on your financial restrictions and other qualifying factors. Some community sponsored mediation agencies may ask certified attorney mediators to conduct the session for free and only ask the couple to pay a small fee to cover administrative expenses.

Private mediation costs depend on the mediator. Some require the couple to pay a flat-fee upfront and others charge an hourly rate that you agree upon before the sessions begin. It’s important to discuss the costs before you choose a mediator, including whether one party will be responsible, or if both will split the costs equally.

How Long Does Mediation Take?

Mediation is much less time-consuming than going to trial for your divorce. 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.

How Can a Divorcing Couple Find a Good Mediator?

One of the best resources for finding a good mediator is to ask your family and friends for a personal referral. If you can’t get a personal referral, you can reach out to your local bar association, community mediation agency, or the court, for a referral. Always make sure you take time to discuss the mediator’s experience, certification, and costs before deciding to move forward.

What Is Divorce Mediation, and How Is It Different from Arbitration?

Mediation is a process where a third-party (a mediator) helps divorcing couples reach an agreement on essential divorce-related issues, like child custody, property division, financial support, and visitation. Unless it’s court-ordered, mediation is voluntary, and both parties must agree to keep the contents of the session confidential.

While mediators may help direct the conversation by raising issues and making suggestions to the couple, in the end, only the couple can decide what they would like to include in the final court order. Mediators may draft the agreement for the couple, but do not have any influence on the final decision.

Arbitration is like mediation in that it is less expensive and less time consuming than a divorce trial, but arbitration doesn’t allow the couples to create an agreement on their own. Couples will present evidence and testimony to the arbitrator, and in the end, like a judge, the arbitrator will decide the issues without the help of the couple.

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