Mediating Your Divorce Text Size:

A divorce can be an extremely traumatic experience; it can be one of the most emotionally and financially draining events of your life. But, it doesn't have to be that way. If you and your soon-to-be ex-spouse have come to a mutual agreement that the marriage is over and that a divorce is necessary, then you should consider mediation.

Through mediation, you and your spouse can make a valid and binding agreement about all aspects of the divorce, that is, you can agree on:

• How your property will be divided between the both of you
• If child support and/or alimony will be paid, and if so, how much and for how long
• Who will have custody of your children and how you and your spouse will share parenting responsibilities

What Is Mediation?

In mediation, a neutral third party, called a "mediator," meets with you and your soon-to-be ex-spouse and helps you two come to an agreement on how the marriage will end. You and your spouse, not lawyers or a court make the decisions.

The goal of mediation is to have you and your spouse focus on your post-divorce lives, that is, reaching an agreement that will enable you both to go on with your lives, comfortably, after the divorce.

So, of course, mediation will work best in situations where the couple has mutually agreed to the divorce, neither spouse wants to "stick it to" the other spouse, and both want to maintain a good relationship after the divorce, such as when the parties have a child and joint or shared parenting is desired.

Mediation is a multi-step process, which involves the:

• Introductory stage, where the mediator explains the mediation process to your and your soon-to-be ex-spouse
• Identification of issues that need to be resolved, like what property needs to be divided and who will have custody of the children
• Discussion and negotiation on resolving the issues, with the idea being that you and your spouse will discuss openly what you need and what you think is fair
• Reaching of an initial agreement
• Drafting and approving a final agreement

In addition, mediation is confidential, that is, anything said during your meetings can't be used against you later. For example, if you're unable to agree on a property division and that matter has to go to court, the mediator can't be called as a witness to testify about what you said about the property division during your mediation meetings.

What Does the Mediator Do?

The mediator's job is to help you and your soon-to-be ex-spouse come to an agreement. The mediator must remain neutral, that is, he or she can't give either one of you any legal advice or defend one spouse's interests or concerns over the other's. Some mediators are very active in proposing alternatives for the parties' consideration; others take a more passive role, allowing the parties to propose solutions and then questioning them about their feasibility.

When a tentative or initial agreement is made, it's the mediator's job to make sure that you and your spouse have fully explored the options, that you understand the consequences of the options, and that you're both satisfied with the agreement. Then, the mediator will draft the final agreement, making sure that its language is clear and that it accurately reflects the end-result of the negotiations undertaken by you and your spouse.

No Courts, No Lawyers?

No, not exactly. Only a court has the authority to order the dissolution of a marriage and make orders for child custody, support, and property distribution. So, once a final agreement has been drafted, it needs to be taken to court for approval. Mediation is liked by the courts because it frees the courts from long, contested divorce trials.

As for lawyers, you don't need one during mediation, but it's a good idea to have one. An attorney can give you legal advice about any of the matters that you and your spouse negotiate and can help to protect your interests. Remember, the mediator has to be neutral, so he or she can't look out for your best interests.

Also, it's a good idea to have an attorney look over the final mediation agreement before you submit it to a court. The attorney can make sure that that the agreement is fair and addresses everything that needs to be settled.

If you and your soon-to-be ex-spouse can't agree on everything during mediation, then the unresolved matters will have to be settled in court, in which case it would be a good idea to have an attorney represent you.

Questions for Your Attorney

• Can you mediate my divorce?
• How do we find a good mediator?
• What is your role in helping me determine if the mediation agreement protects my interests and serves my needs?

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