What is Divorce Mediation?

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 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.

Litigation vs. Mediation

In the traditional litigation route, one party files the initial petition for dissolution of marriage and that petition is served on the other party. The other party will obtain a lawyer and file an answer and, depending upon the degree of conflict in the divorce, will proceed through various pretrial processes (including discovery) and ultimately reach a settlement or have a trial where the judge makes the ultimate decision. The traditional litigation route takes time – from six months to two years – and does not move rapidly. Because this process involves more lawyer hours for both parties, it can be costly.

Mediation, however, can occur before anyone files for divorce. If two spouses decide they want to end their marriage but feel they can work together in a collaborative manner to work out all the financial and custody issues together, they should consider mediation. It involves less time and expense, and it likely resolves with less bitterness and controversy. Finally, it gives the spouses, rather than the court, the final say in how to structure all aspects of the divorce settlement. With divorce mediation, spouses often finalize their divorce without making court appearances. Divorce mediation also takes less time than the traditional divorce process. On average, traditional divorce can take nine months or a year, and potentially much longer. The mediation process, on the other hand, can be completed as quickly as spouses choose. Divorce Mediation provides spouses with flexibility to cost effectively reach agreements when they have complicated circumstances. For example, spouses who own a family business might want to craft a creative arrangement that allows both spouses to stay involved in the business in the future. Working with their mediator and other business advisors, such goals can be reached and written into the appropriate settlement documents to protect both spouses.

Sill Need a Lawyer? 

Mediators advise their clients that each spouse always has the right to hire a lawyer and encourage each spouse to hire one based on the facts of their situation. Attorneys can provide legal advice, draft the pleadings needed to start the case in court, and review the final settlement documents before it is signed. However, attorneys don’t have to be involved in the actual mediation sessions or participate in the negotiations with your spouse. The mediation process can save couples thousands of dollars on attorney fees. Even a failed attempt at mediation can be cost effective. If couples abandon mediation and hire litigation attorneys, they will find that they are more prepared and likely already have some of the information the attorney needs to move the case forward quickly. Again, the failed mediation should save on attorney fees.

How Long is the Process?

The divorce mediation timeline is ultimately controlled by the spouses themselves. The process can proceed according to their own needs and is not controlled by busy court calendars or legal deadlines. This also allows spouses to take the time needed to discuss issues that are important or pressing for them. For example, some spouses might need the initial sessions to help them physically separate and designate new living arrangements. Others are ready to jump into dividing assets or discussing child custody. The goal of mediation is for each couple to reach a full and fair settlement agreement that addresses all the issues important to them. A mediator will usually consider divorce mediation as on-going until a settlement agreement is signed. Each mediator will have guidance about how frequently a couple should schedule a mediation session.

What is the Role of the Mediator?

The role of a divorce mediator is to facilitate communication between divorcing spouses and to guide them in deciding: (1) which assets need to be divided and how they will be divided; (2) which debts need to be allocated and how they will be allocated; (3) what child custody schedule is best for your family; (4) whether child support and/or spousal maintenance is appropriate; and (5) how child support and/or spousal support will be calculated. The mediator will also educate both spouses on how the divorce process works if you were to choose the traditional litigation method of divorce. However, the role of the divorce mediator is not to represent either spouse or to argue on one spouse’s behalf. The mediator is not the same as a judge in your case. In other words, the mediator does not make the final decisions for you; rather, the mediator will not make a decision for you, but will help you and your spouse identify options and so you can decide what is best for you. Discussions in front of the mediator are confidential. If one or both spouses change his or her mind during mediation and chooses to proceed with court, the mediator cannot be called as a witness in your divorce case in court.

When is Divorce Mediation Not a Good Choice? 

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.

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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