If you’re starting the divorce process, you’ll likely soon learn about mediations, and how this form of collaborative negotiation can not only help reach agreements in a legal case, but save on fees and unnecessary headaches that go hand in hand with a drawn out and contentious divorce experience. Below we dive into specifics about the most important aspects of the mediation process to be aware of, and how you can prepare to get as much benefit as possible from the experience.
What is Mediation?
In divorce mediation, you and your spouse meet with a trained, neutral mediator to discuss and resolve issues in your divorce. Mediation sessions often take place in an informal office setting, but they can also be conducted remotely, or even virtually. A mediator can help you reach agreements on the issues you and your spouse need to resolve in order to finalize your divorce, such as child custody, parenting time, child support, spousal support and property division.
It's important to understand that mediators don’t make decisions or offer legal advice. Rather, they serve as facilitators to help spouses figure out what’s best for their unique situation. Spouses make their own voluntary decisions and can personalize their divorce terms to meet both of their needs—in short, the choice about whether to settle the case and avoid court is always up to the spouses.
When spouses reach an agreement through mediation, most mediators will draft (and possibly file with the court) a divorce settlement agreement. And don’t forget; while mediation is a more informal and less expensive process, it is a serious one, and is legally binding once the process is complete.
Is Mediation the Answer for Everybody?
The simple answer is no. Mediation is about a group of people getting together to solve a problem, and all parties need to be willing to be solution-oriented when they go into it. When a marriage is ending due to power imbalances, domestic violence, vengeful parties, or an unwillingness to even end the marriage on one side, mediation will likely be problematic. If you want control of the divorce process, mediation is a good option, but only if it is safe to do so and the mediation is agreed upon and welcomed by both parties.
So, I’ve Chosen to Give Mediation a Try—What Do I Need to Gather for a Successful Experience?
The first thing you’ll need to establish is who you want to hire as a mediator. Generally, a mediator is chosen in the same way as any other legal expert in your case—you can review, research, rate, and talk with potential mediators before you sign a contract with them. They are either hired directly, or your attorney may hire them.
Once you have your mediator scheduled, you’ll need to gather and organize your financial documents, have a comprehensive written budget and expense report ready, and an idea of what exactly you want to accomplish from the experience. Its helpful to take some time before the mediation to discern the difference between what you are asking for (say, the house) and the underlying reason for why (giving your kids stability). Having a clear picture of what you would like to ask for and why will help make the process move forward more smoothly.
Lastly, focus your energy on finding compromises and agreements, not on winning—having a mindset to win will only derail your efforts to collaborate on positive solutions. The mediator makes no decisions on your behalf, so there is no need to convince them of anything. Instead, focus your energy on brainstorming a win/win solution.
I Know That I have Emotional Triggers—How Do I Prepare for That?
If you’ve got emotional triggers around your ex-partner and you’re concerned about trying to work with them in a collaborative environment to come to agreements, there are some steps you can take to prepare emotionally. Take some time before your mediation session to think about what your spouse could say that might put up a wall as soon as the topic comes up or cause anger to flare. Being conscious of these triggers and prepared for these reactions will help you feel more in control if they do come up.
Most importantly, be sure to tell your mediator if you’re concerned that a particular topic will be difficult to discuss. Knowing this beforehand will allow the mediator to work with you separately to prepare, create ground rules to help you feel safe, and to remain conscious of your feelings on the subject throughout the day.
Do I Need an Attorney for My Mediation?
Mediations can be done with or without attorney involvement. However, ending a marriage is a legal process, even through mediation. If a mediation results in an agreement, you will be signing binding legal documents that will then go to court to become a court order and ultimately determine your future and the future of your children.
Remember, a mediator cannot provide legal advice, and their job is to remain unbiased. An attorney, on the other hand, can advocate on your behalf—they are a legal representative who is there to protect and promote your best interests and rights, and they will have knowledge of what constitutes a fair deal, especially in the long term. Depending on if the divorce is a high-conflict situation, being represented by someone who is level-headed about the situation is always beneficial. Many couples today will hire both lawyers and mediators, and the process is still less expensive than a drawn-out case that requires litigation in court.