There is more than one way to divorce. Although the most common way is for each spouse to hire an attorney and litigate the divorce, it is not the only way. Divorcing couples may prefer to resolve their divorce issues out of court for a variety of reasons. Keeping the matter private, reducing attorney’s fees, and minimizing stress are just a few examples.
One of the most popular out-of-court options is to resolve divorce issues through the divorce mediation process. Divorce mediation is a voluntary process. Although success is not guaranteed, the divorce mediation process is often worth considering.
Before choosing the divorce mediation process, you should consider the following questions:
1. Are you and your spouse both on board with the mediation process?
Divorce mediation is a voluntary, non-binding process. Both spouses should enter the process in good faith with the intention of trying to reach a settlement on all divorce issues. Additionally, both should want the process to be successful. If one spouse feels forced to attend mediation, he or she may attend without an open mind and an intention of working collaboratively to facilitate an agreement which is needed for the mediation to be successful.
2. Is it important for you and your spouse to keep your divorce private?
Divorce mediation provides a confidential and private setting for a divorcing couple to discuss their divorce issues. Knowing that the mediator cannot be called to testify at trial should the mediation fail facilitates greater communication between divorcing spouses to reach a negotiated amicable settlement.
3. Do you know your legal rights and divorce options?
The divorce mediator is a neutral party who does not provide legal advice. Before choosing to enter divorce mediation it is important that each spouse knows his or her legal rights and divorce options. Therefore, it is recommended that each spouse consults with a family law attorney for legal advice before choosing or starting the divorce mediation process.
4. Is there a history of domestic violence or is there a power imbalance between you and your spouse?
If the answer to either question is yes, it is recommended that you consider whether you would feel safe in a mediation session. This could be for your personal safety or that you feel intimidated and unsure if you could freely and fairly negotiate a settlement that is in your best interests. If you are unsure, it is recommended that you consult with a family law attorney to determine if the divorce mediation process should be considered an option.
5. Are you concerned about your spouse being transparent?
If yes, it is recommended that you discuss it privately with a family law attorney prior to agreeing to the divorce mediation process. It is possible that your attorney may advise you not to consider divorce mediation until all the necessary information has been obtained during the formal litigated divorce process. It is also possible that your attorney may advise that you begin the divorce mediation process to address your immediate concerns while discovery is being completed in the litigated divorce.
6. Do you and your spouse communicate and work well together?
If yes, then the divorce mediation process provides you with an opportunity to decide with your spouse collaboratively how to resolve all your divorce issues. Divorce mediation requires both spouses to engage in conversation and discussion with the mediator acting as a facilitator. It also requires that you and your spouse willingly provide specific documents, usually financial documents, so the mediator can review and discuss them with you during mediation sessions. If you or your spouse refuses to communicate or work collaboratively with your spouse, then mediation will be difficult at best and ineffective at worst. In either case, the lack of communication and collaboration will increase the amount of time needed to resolve all divorce issues in mediation.
7. Did you interview the mediator before scheduling your first mediation session?
Your first mediation session will include discussions about personal, confidential, and potentially embarrassing matters. The first hour of the mediation can easily create communication difficulties for everyone in the room. The mediator is there to help you and your spouse by acting as a neutral facilitator. The mediator helps facilitate movement by asking questions and providing the information necessary to keep the discussion moving forward in a positive manner. Prior to scheduling your first session, you and your spouse should interview a potential divorce mediator to make sure he or she is a good fit for your situation. You and your spouse can ask how many years the mediator has been handling divorce mediations, what percentage of his or her practice is divorce mediation, what styles of mediation he or she uses in sessions, etc. You and your spouse should enter the first mediation session feeling comfortable with the selected mediator.
8. Do you know the rules of mediation and agree to follow them?
You should read the Agreement to Mediate and Ground Rules either prior to or at the first mediation session. The Agreement will set forth the rules and expectations regarding your conduct during the mediation process, the role of the mediator, mediation confidentiality, full financial disclosure, etc. You should ask questions as needed after reading the Agreement. You and your spouse must understand and agree to follow the rules during the mediation process.
9. Do you understand that mediation requires that each spouse compromise?
You must enter divorce mediation with the understanding that some compromise is needed. If one spouse enters the room with a “take it or leave it” attitude, then the mediator will need to spend a lot of time getting beyond that impasse so he or she can facilitate an agreement. If the mediator cannot get past this impasse, then the mediation will be unsuccessful.
10. Should you retain a lawyer to consult with during the mediation process?
Maybe. The mediator is a neutral party who facilitates the mediation process. As the mediator cannot provide either spouse with legal advice, it may be necessary for one or both spouses to hire an attorney to obtain the necessary legal advice. Depending on the issue, it may be even more beneficial for each spouse to obtain that legal advice before discussing the issue in mediation. Depending on the issue, this may not always be the correct approach. It may be best to consult with an attorney for information and advice during the mediation process. In my mediation practice, I tell the spouses when it is best or necessary for each of them to speak with an attorney, depending on the issue.
A successful divorce mediation is a great alternative to litigation. The divorce mediation process is typically less costly than litigation. Mediation sessions are scheduled at the convenience of each spouse and the mediator. Divorce mediation allows the divorcing couple to make their own decisions in a private, confidential setting.
Should you need the assistance of an experienced divorce mediator or have questions or concerns about your divorce situation, know that we are here to help and ready to discuss those issues with you.