In some states, divorce mediation is an alternative to going to trial to decide the issues of a divorce. In others, divorce mediation is required before a divorce trial can begin. In divorce mediation, a mediator meets with a husband and wife and acts as an impartial third party to facilitate an agreement. Often, mediation is a quick, less costly way to resolve disputes and reach a mutually beneficial outcome.
How divorce mediation works
In divorce mediation, couples choose a mediator (or the court appoints one) to discuss their cases. The mediator is often a lawyer or retired judge, but is not required to be. Over a single or several formal sessions, the mediator meets with the husband and wife separately or, at times, separately with the husband and wife and their lawyers. The mediator helps each party clearly define their issues and priorities and freely express their emotions and points of view. Each party presents documentation that clarifies and substantiates his or her issues. The mediator then encourages both parties to identify common goals, brainstorm options and accept compromise. The husband and wife evaluate their options and decide upon workable solutions. The process concludes with a written mediation agreement, sometimes called a Memorandum of Understanding, that outlines all the details that the mediation has covered.
It's important to note that a mediator tries to guide couples to reach an acceptable settlement. He or she does not give legal advice or make decisions for the couple. Both the husband and wife should have their lawyers review the mediation agreement before signing it. Once it's signed, the court uses the mediation agreement to create the final divorce settlement.
Benefits of divorce mediation
With divorce mediation, the husband and wife have control of the major decisions that affect their post-marriage life. Litigation, on the other hand, leaves the decisions up to the court. In states that do not require divorce mediation, many couples still choose it in order to bypass the uncertainty and costs that come with litigation.
Divorce mediation doesn't simply decide who gets what. It takes into account the unique issues that underlie the couple's conflicts. The process is intended to resolve differences and create a situation where a relationship can continue. This is especially important where divorcing couples have children and plan to share custody. In fact, many state courts mandate mediation in child custody disputes.
When to seek divorce mediation
If your state does not already require divorce mediation, it may be a wise choice if you and your spouse seek joint child custody, or agree about parenting issues, and plan on a fair distribution of property. Divorce mediation creates a less adversarial environment for your children and helps you and your spouse put together a co-parenting plan based on mutual interests.
Divorce mediation is also recommended after a divorce has dragged on for some time, to reduce additional costs and delays.
Additional resources:
American Bar Association: Choosing Mediation Over Litigation
Divorce Source: Divorce Truths: Mediation: An Alternative
