The Basics of Divorce Mediation

Even when parting spouses disagree, a divorce doesn’t always have to be a big fight. For many couples, divorce mediation is an excellent alternative to battling it out in court. 

What Is Divorce Mediation?

Divorce mediation is a voluntary process for couples who seek an efficient, yet fair, divorce process. Mediation is a facilitative process that allows individuals to control the outcome. The mediator is a neutral, third-party professional who keeps spouses focused on the goal of a fair outcome, not battling over past resentments. During divorce mediation, the mediator guides couples in addressing all the issues associated with divorce, including the division of property, the allocation of debt, child custody, child support, and spousal maintenance. Divorce mediation is faster, less expensive, and less contentious than a traditional divorce litigation process. Reducing the stress and trauma of the divorce process itself may ease co-parenting after divorce, as well.

Do I Need a Lawyer?

You don’t need to hire a lawyer to participate in divorce mediation. In fact, many divorce mediators discourage spouses from having a lawyer present because they are concerned that the presence of lawyers will create tension. If your mediator allows lawyers to be present, and your spouse will have one there, it’s in your best interest to hire one, too. Otherwise, you’ll likely be at a disadvantage in the negotiations.

But even if you don’t have a lawyer with you in the mediation sessions, you might choose to consult with an attorney to advise you ahead of time and help you prepare for mediation. And it’s usually a good idea, if possible, to have a lawyer at least review any settlement agreement or parenting plan that you’ve reached during mediation before you sign it. Even though you will need to pay the lawyer’s hourly fee for these services, it could save you money in the long run if it helps you negotiate a more favorable settlement or avoid unforeseen consequences of an agreement.

Why Choose Mediation for Your Divorce?

Although judges often order divorcing couples to participate in mediation before going to trial, you have the option of mediating on your own. This can happen before you file for divorce or at any time after filing. Divorce mediation has a lot of advantages over traditional litigation.

  1. Cost. Mediation is much less expensive than a trial.
  2. Settlement. Most mediations end in the settlement of all issues in the divorce.
  3. Confidentiality. Mediation is confidential, with no public record of what goes on in your sessions.
  4. Freedom to Create Settlement Terms. Mediation allows you to arrive at a resolution based on your own ideas of what you believe is fair in your situation, rather than having a solution imposed upon you by a judge after a trial. You and your spouse -and not the court – control the process.
  5. You Can Still Seek Attorney Advice. You can go to mediation and still choose to have a lawyer give you legal advice.
  6. Communication. The mediation process requires communication between you and your spouse, helping you avoid future conflicts by having difficult conversations during the process.

Successful mediation makes the rest of your divorce easier: Because you’ve done all the hard work of hammering out the details in the mediation, you can file an “uncontested” divorce. Uncontested divorces are usually less expensive and faster than litigated divorces (divorces where the couple battles in court).

Who Should (and Shouldn’t) Consider Divorce Mediation

Divorce mediation is not for every couple. Divorce mediation is generally not advised in cases where there is a history of domestic violence. Domestic violence is evidence of a power imbalance between the spouses that is not conducive to successful mediation. For divorce mediation to be successful, each spouse must feel that he or she can speak freely in front of the mediator and each other. The mediator ensures that communication remains respectful and cordial. The mediator can also build momentum toward settlement by highlighting areas of mutual agreement while helping to resolve areas of disagreement. However, if one spouse is afraid to speak freely or is afraid of repercussions after speaking freely, mediation is likely not appropriate. Additionally, for mediation to be successful, both spouses need to feel confident that full disclosure of all financial assets is made. The mediator will instruct the spouses on what financial information needs to be provided, but if either spouse feels the other is not being truthful or honest, divorce mediation is not appropriate.

For divorces without those kinds of circumstances, divorce mediation can be a great option. It’s especially effective when both people show up open to compromise.

Don’t reject mediation just because you and your spouse see a particular issue very differently. Mediation is a powerful process, and many cases that seem impossible to resolve at the beginning end up in a settlement.

The Divorce Mediation Process

Although every mediator will have their own style, the general process of mediation is pretty consistent.

Before Mediation

Before the mediation, you might speak with the mediator or an assistant and provide background information about your marriage, your family, and the issues in your divorce. Or your mediator might have you fill out a questionnaire. The mediator might also ask you to write up a “mediation statement” outlining your basic information and the divorce-related issues you think need to be resolved.

The mediator will also ask you to sign an agreement to mediate that says that you’ll keep what’s said in the mediation confidential and that you understand that the mediator can’t disclose any of what goes on in your session in court.

During Mediation

Mediation sessions are usually held in a conference room or multiple conference rooms depending on whether the mediator meets with everyone in the same room for the entire mediation or chooses to break the spouses out into separate rooms for private discussions. For couples who have attorneys with them at mediation, the mediator might ask to meet privately with both sides before beginning the session and may keep each spouse in a separate conference room throughout the process.

After the mediator takes care of housekeeping issues such as the agenda for the session, you’ll probably get a chance to make a short statement about your situation, as will your spouse. After you’ve each had a chance to speak, the mediator might ask some questions to clarify or get more information. Your mediator might repeat or summarize your points to confirm that they understand what you’re trying to say.

The next step will be to figure out what issues you and your spouse really agree on and don’t agree on. The two most important things you can do to reach an agreement are to be open to compromise and be a good listener of your spouse’s point of view. Understanding your spouse’s position doesn’t mean you have to agree with it. But it’s possible that, once you’ve listened closely to your spouse’s concerns, you’ll have new ideas about how to resolve disagreements.

Completing the Agreement

If you finish negotiations and resolve some or all your divorce-related issues, the mediator will write a settlement agreement and, in many cases, a parenting plan. Your settlement agreement will include only the topics that you resolved during mediation. If the court approves your settlement agreement, the agreement will become part of the final divorce decree. You can then enforce the terms of the settlement agreement just as you would any other order from a court.

Should you and your spouse agree to divorce mediation, please know that our divorce mediation attorneys in Creve Coeur and O’Fallon are here to help and ready to meet with you and your spouse to discuss if we are the right fit for your mediation.

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