1. What Is Divorce Mediation?
Divorce mediation is for spouses who seek a fair and efficient divorce process. Mediation is a collaborative process that allows divorcing spouses to control the outcome. The mediator is a neutral, third-party attorney who keeps each spouse focused on achieving a fair resolution and away from arguing over past resentments.
During divorce mediation, the mediator facilitates spouses in addressing all issues associated with divorce, including child custody, child support, the division of property, the division of debt, and spousal maintenance (support).
Divorcing spouses often choose mediation because the process is faster, less contentious, and less expensive than a traditional litigation process. Reducing the stress and animosity found in a traditional divorce litigation process often results in better co-parenting after divorce, which is an important possible benefit.
Divorce mediation provides spouses with a known result, as the mediator prepares the final settlement documents (parenting plan, separation agreement) so the divorce case can be filed as an uncontested matter before the court.
2. How Is Divorce Mediation Different from Traditional Litigation?
Most of my mediation clients over the past twenty-five years say the biggest pro of divorce mediation is that it is fundamentally different from a traditional litigation process. Why? Because divorce mediation is not an adversarial process which is the opposition to a traditional divorce in which lawyers represent spouses against each other. In mediation, spouses work together with the help of a mediator to reach agreements that make the most sense after considering their actual family circumstances.
With divorce mediation, couples can complete their divorce without ever having to appear in a courtroom. The divorce mediation process also takes significantly less time than the traditional litigated divorce process. On average, traditional litigated divorces in the St. Louis Metropolitan area take nine to twelve months. The mediation process, on the other hand, can be completed as quickly based on the mediator’s schedule and the divorcing couple’s ability to reach an agreement.
Divorce mediation also provides spouses with complicated fact patterns and a cost-effective way to reach an agreement that couldn’t be ordered by a judge at the end of a trial. For example, spouses who own a small family business might be able to create a way for both spouses to stay involved in the business allowing them to still have health insurance and/or a source of income post-divorce. Working through these issues in mediation also allows the mediator flexibility to speak with the couple’s CPA and other advisors so ideas can be discussed knowing the tax consequences and legalities resulting in informed agreements and settlement documents that protect both spouses. Alternatively, the traditional divorce process is usually designed to have the judge divide all assets at the time of the divorce. While this might be a desired outcome in most cases, you may want to control the narrative for your family and need more flexibility due to your family’s unique circumstances. Mediation also allows for more creative parenting plans whereas a judge tends to default to traditional weekend and weekday arrangements you can create a custody plan that works best for your family.
3. What Is the Role of the Mediator?
The role of a divorce mediator is to facilitate communication between divorcing spouses and to assist them in reaching agreements on how marital property will be divided, how marital debts will be allocated, what legal and physical custody arrangement is in the best interest of the children, developing a parenting plan, the amount of child support, and possibly the amount of spousal maintenance. The mediator will also explain to the spouses how the process works if they were to choose the traditional litigation method of divorce. It is important to remember that the role of the divorce mediator is not to argue on your behalf or represent either spouse in court. The mediator is not the judge in your case. The mediator does not make the final decisions for you. Spouses who are hoping someone else will tell them what to do in this divorce will be disappointed by mediation as the mediator will not decide for you. Rather, the mediator will help both spouses identify options so each spouse can decide what is best for him or her. Discussions in mediation are confidential. If one or both spouses changes their mind and choose to end mediation and proceed with litigation, the mediator cannot be called as a witness in that case.
4. How Long Does Divorce Mediation Take?
The mediation timeline is basically controlled by the spouses themselves. The process normally proceeds according to the needs and desired speed of the spouses (and not by busy court dockets). This allows spouses to take the time needed to discuss issues that are important to them. For example, some spouses might need the initial sessions to help them decide on child custody and support issues so they can physically separate. Others may find dividing assets and debts to be the first step. The timing of sessions is important. You don’t want to move too fast if that results in adding stress to one spouse which results in a stressed mediation process. You also don’t want to move too slowly as that may defeat any momentum gained during the prior session or make one spouse frustrated and want to proceed with traditional litigation.
5. When Is Divorce Mediation Not Appropriate?
Mediation is not appropriate for every divorcing couple. Mediation is not advised in cases where there is a history of domestic violence as that situation already has a power imbalance that is not good for mediation. For mediation to be successful, both spouses must feel confident that they can speak freely to the mediator. If one spouse is afraid to speak freely due to what may happen after mediation is over, there is no way for the mediator to ensure that communication remains respectful and cordial. Thus, mediation is not appropriate.
Mediation is not appropriate when one spouse is being untruthful. For divorce mediation to be successful, both spouses need to feel confident that there is full disclosure of all financial assets. The mediator asks the spouses for financial information that needs to be provided; however, if either spouse refuses to disclose or if a spouse simply believes that the other spouse is not being honest, mediation is not appropriate.
6. Will I Still Need a Lawyer?
I always advise my mediation clients that a spouse always has the right to hire a lawyer and encourage each spouse to hire one when necessary, during the mediation process. The hired attorney can provide legal advice (which the mediator cannot do) and review the final settlement documents drafted by the mediator before either spouse signs. Please keep in mind that attorneys who assist mediation clients have minimal involvement and are usually not involved in the mediation sessions.
Should you need the assistance of an experienced child custody and divorce mediator, know that we are here to help and ready to schedule an initial mediation session with you.