Understanding Divorce Mediation: Debunking Mediation Myths

Learn everything you need to know about the divorce mediation process.

What is the difference between court-ordered mediation and private mediation?

Court-ordered mediation is a mandatory mediation session ordered by a judge 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, which means neither spouse has control over the schedule. Typically, judges reserve court-sponsored mediation for couples dealing with child custody 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 case's progress.

Private mediation involves hiring a mediator who charges by the hour or requires a retainer. Private mediators are typically experienced family law attorneys that are also trained in divorce mediation. Both spouses must agree to participate in mediation and 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 a consulting attorney to guide you through mediation. This family law attorney can meet with you and:

  • provide advice about your rights and responsibilities
  • calculate child and/or spousal support for you
  • draft or review your proposed mediation agreement, and
  • make suggestions or changes to protect your interests.

The consulting lawyer will help you understand your agreement's details and inform you if the final contract is in your best interest.

Sometimes, but not often, your consulting attorney may attend all of the mediation sessions with you. This will cost more, so you should consider whether you really need your attorney at each session.

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.

How much does mediation cost?

The cost of divorce 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 up front, 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 just one session, while others may meet multiple times before reaching a complete agreement. The amount of time you spend in mediation depends on how well you communicate, the number of issues you need to resolve, and the complexity of your case.

It's no surprise that from start to finish, divorce takes a long time. In most cases, mediation will help streamline the process in a way that will significantly reduce the time it takes to finalize your case. Many states have a mandatory waiting period before the judge can finalize a divorce. During the waiting period, many couples find it beneficial (and some courts require it) to participate in mediation to discuss how to settle the case.

If you're not willing to mediate or negotiate, you're going to wait for the entire mandatory period before the judge even looks at your situation. For example, in Michigan, couples with children must wait a minimum of six months before a judge can act on the divorce. (Mich. Comp. Laws § 552.9f.) But if couples mediate their divorce and can reach an agreement during that time, a judge can approve their dissolution in as little as six months.

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. If you've consulted with a local divorce lawyer, you can ask that attorney for recommendations. During your initial consultation with each mediator, always make sure you take time to discuss the mediator's experience, certification, and costs before deciding to move forward.

Does mediation allow one spouse to dominate the other?

No. Most states require mediators to attend extensive training before taking on any cases. Mediators learn how to balance the spouses' power, especially if there's a history of dominance in the marriage.

A qualified and experienced mediator should pay close attention to the spouses and will use techniques to address and remedy any imbalances. In most situations, if the mediator calls attention to dominant behavior and the spouse continues, the mediator will end the mediation session.

It's important to understand that even the best mediators can be unaware of dominant behavior if it goes on outside the meeting. For example, if your spouse is sending you threatening messages regarding the mediation session, the mediator can't stop it unless you let the mediator know about it.

If there's a history of domestic violence in your marriage, mediation may not be the best choice for your divorce case. In mediation, the abuser may have a tendency to intimidate the victim into agreeing to things that aren't in the victim's best interest. In these case, it's best for the victim to hire an attorney.

Is mediation more of a hassle than hiring a lawyer to handle the divorce?

Divorce is a time-consuming and expensive process even without attorneys. Once you start incurring legal fees from a qualified attorney, you can expect your divorce costs to rise significantly.

Mediation is a program that most courts utilize to alleviate a standard divorce's time and financial constraints by cutting out the need for a trial or court intervention.

Regardless of the route you take, divorce requires both spouses to gather relevant financial, medical, and other information so the couple can create an informed and proper final divorce agreement. After you submit your documents, couples can attend a few mediation sessions or give up most of the control and ask the court to decide for them, which will add a significant amount of time and expense to your divorce.

Is there a place for lawyers in mediation?

Contrary to popular belief, most attorneys support mediation. Attorneys understand that the average couple doesn't have the money to support a contested divorce, so they encourage clients to attend mediation with an open mind and in good faith.

Even if you decide to pursue mediation, you may still want to have a consulting attorney guide you through the process behind the scenes. In this role, your attorney is not representing you in your court filings or your entire divorce case, so his or her name will not appear on your filings.

Instead, a mediation consulting attorney's primary function is to inform clients of their rights and responsibilities during the divorce process, to coach them through the negotiation process, draft or review any proposed settlement agreement to make sure it meets their needs, and prepare the necessary paperwork to obtain court approval of the final agreement. While most states prohibit attorneys from charging a flat-fee for divorce, many will charge a reasonable hourly rate for services. If the attorney requires a retainer up-front (advanced payment), the client will receive a refund of any unused funds at the end of the case.

Does the mediator decide what's fair?

No. Unlike a judge or arbitrator, mediators hold no power when it comes to making a final decision on your case. Mediators are trained to understand how to facilitate the conversation and offer suggestions when the couple reaches a roadblock.

An experienced mediator will understand and be up to date on the divorce laws of your state. While mediators can't give legal advice, they can provide couples with information about the divorce laws in their state (for example how property division will work in each case) and also tell the the couples what they can expect if they take a specific issue to court.

Being informed and knowing how judges typically handle specific issues can help encourage one or both spouses to negotiate a fully-informed settlement. Most divorcing spouses prefer to have some control over their divorce agreement rather than leave it up to a judge. Still, if the couple can't agree, the mediator must end the session without an agreement, and the couple must ask the court to handle any unresolved issues.

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