Family Law

Mediating Your Divorce

Divorce can be traumatic. Too often, it's emotionally and financially devastating. A traditional divorce can leave you exhausted, bitter and broke.

But your divorce doesn't have to be that way. If you and your soon-to-be ex-spouse mutually agree that your marriage is over and divorce is necessary, you should consider mediation. For many couples, it's a faster, cheaper and less acrimonious way to make the big split.

What Is Mediation?

In mediation, you and your spouse sit down with a neutral third person, called a "mediator," to craft an agreement for ending your marriage. Your mediator will help you write the agreement, and then you'll submit it to a court for approval.

Your goal is to determine:

Why Choose Mediation?

The benefit of mediation is that you and your spouse, not judges and lawyers, make the decisions. Instead of you and your spouse each having a lawyer to fight about what's fair, you directly express your wants and needs. The mediator then helps you negotiate a solution that works for both of you. 

The focus is on your post-divorce future. Your aim is to reach an agreement that enables you both to go on with your lives, comfortably, after the divorce.

Mediation works best in situations where:

  • Both spouses want the divorce
  • Neither spouse wants to "stick it to" the other spouse
  • Both spouses want a good relationship after the divorce to share parenting responsibilities

Mediation doesn't work well in situations where:

  • There's a history of domestic violence or abuse
  • A spouse is addicted to drugs or alcohol
  • A spouse is hiding assets

What Does a Mediator Do?

Your mediator's job is to help you and your soon-to-be ex-spouse come to an agreement. Although your mediator might make suggestions or give you assignments, your mediator can't dictate the terms of your agreement. It's really up to you to make the big decisions.

Your mediator will help you:

  • Explore your options
  • Understand the consequences of your decisions
  • Make sure you're both satisfied with the agreement
  • Draft an agreement that accurately reflects your decisions

Choosing a Mediator

When selecting a mediator, keep in mind that your mediator should:

  • Be professional. Mediators are often attorneys, but they don't have to be. Your mediator could be a family counselor or other professional with special training in divorce negotiations
  • Remain neutral. Your mediator works for both of you and can't favor one person over the other
  • Keep confidences. Anything said during your meetings can't be used against you later. For example, if you can't agree on the division of your property and that matter goes to court, the mediator can't be called as a witness to testify about things you said

The Mediation Process

Mediation is a multi-step process, which involves:

  • An introductory stage, where the mediator explains the mediation process
  • The identification of issues to resolve, like what property needs to be divided and who will have custody of the children
  • Discussion and negotiation to resolve issues, with the idea that you and your spouse openly discuss what you need and what you think is fair
  • Reaching an initial agreement
  • Drafting and approving a final agreement

No Courts, No Lawyers?

No, not exactly. Only a court has the authority to order the dissolution of a marriage. Only a court can make orders for child custody, support, and property distribution. So, once a final agreement is drafted in mediation, it needs to be taken to a court for approval.

As for lawyers, you don't need one during mediation, but it's a good idea to have one. Your divorce attorney can give you legal advice about the matters you negotiate with your spouse. Remember, the mediator must remain neutral, so he or she can't look out for your best interests the way your attorney can.

Also, it's a good idea to have your attorney look over the final mediation agreement before you submit it to a court. Your attorney can make sure the agreement is fair and covers everything that needs to be settled. Your attorney can also help with any unresolved matters that must be addressed in court.

Mediation isn't right for all divorces. But when couples approach mediation with a cooperative attitude, it can result in a satisfactory agreement that leaves them with much less anger and resentment than they'd get fighting it out in court.

Questions for Your Attorney

  • Do you charge a flat fee or hourly fee to mediate my divorce?
  • How long does it take to get a divorce through mediation?
  • Do divorce mediators need to be certified in my state?
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