If you are going through divorce, you may be wondering what is mediation in divorce and if it’s the right choice for you. Even when divorcing spouses disagree, there need not be a major argument. Divorce mediation is frequently a great substitute for going to court for many couples.
Here, let’s take a deeper look at what is mediation? We’ll also understand the role of a mediator, the process of mediation, and who it’s right for. We’ll also take a look at some pros and cons of mediation in divorce.
What is mediation in divorce?
You and your partner meet with a qualified, impartial mediator to go over and settle the challenges in your divorce during divorce mediation. Although mediation meetings frequently happen in a relaxed office environment, you may even be able to complete your discussions online.
A mediator can assist you and your spouse in coming to an agreement on the matters that must be settled to conclude your divorce, like custody, childcare, and division of assets. Mediators act as facilitators to assist spouses in determining what is best for their circumstances rather than making decisions or giving legal counsel.
Most mediators will create (and potentially submit to the court) a settlement agreement when the partners reach an understanding during mediation.
Do I need a lawyer for divorce mediation?
To take part in mediation, you don’t need to have legal representation. In fact, several mediators dissuade the participation of a lawyer out of concern that it will exacerbate the situation. However, you always have the choice to speak with a lawyer either before or after mediation.
It is in your favor to hire an attorney as well if your mediator permits it and your husband or wife will be represented by one. If not, you’ll probably find yourself at a disadvantage during the discussions.
Do note, however, that some mediators may be practicing attorneys, too. In such cases, while they will not provide legal advice supporting either you or your spouse, they can still provide a legal outlook. It may help you and your spouse to reach an agreement that is legally solid and won’t stand the risk of being rejected by a judge.
What is the process of divorce mediation?
While each mediator will have their own way of going through mediation, the basic process remains similar. It’s divided into three stages – before, during, and after the mediation. Let’s look at what each of the stages entail.
Before the mediation begins
You might discuss your marital relationship, your family, and the reasons for your divorce with the facilitator or their assistant before the mediation to give them background information. Another option is for your mediator to ask you to complete a questionnaire. The mediator may also request that you draft a “mediation document” outlining your background information and the concerns you believe need to be settled in relation to your divorce.
The mediator may also request that you sign a document stating that you’ll keep the information shared during the mediation private. It may also state that you acknowledge that the mediator cannot discuss any of the details of your session with the judge.
During the course of mediation
The majority of mediation meetings take place in cozy conference rooms or offices, unless you’re doing it online. While some mediators conduct the entire mediation in one room with everyone present, others may separate the couples for more private conversations. The mediator may request a private meeting with both parties before the session starts for couples who are represented by attorneys.
You and your spouse will likely have the opportunity to speak briefly about your situation after the facilitator takes care of initial matters like the session’s agenda. The mediator may pose some questions to further clarify or elicit additional information after you’ve both had an opportunity to talk.
Finding out what ideas you and your partner actually agree and disagree on will be the next step.
The two most crucial actions you can take to come to a consensus are to be willing to make concessions, and consider your spouse’s perspective while listening.
You don’t have to concur with your spouse’s viewpoint just because you understand it. However, it’s possible that after paying close attention to your spouse’s worries, you’ll come up with fresh suggestions for how to handle conflicts.
What is an agenda and how will the mediator decide one?
An agenda for a mediation session is the main topic that the mediator would like to settle during that session. It’s not limited to a single point of discussion and can include as many issues as the mediator can address in a single meeting.
The facilitator will first ask for the data required to fully comprehend the issues that need to be resolved to devise the agenda.
For example, they must first ask for and obtain from both spouses the details of the liabilities and assets they have accumulated to be able to establish the agenda for splitting marital assets. This includes the value of the marital home, a second home, a rental, savings and checking bank accounts, investment accounts, retirement funds like 401ks and IRAs, etc.
The facilitator can then establish the agenda for discussing his or her suggestions for splitting the assets once they have all of this information.
They will follow a similar process to work out all the challenges listed in your mediation document.
After the mediation session
The mediator will draft an agreement and, frequently, a parenting strategy or timetable if you reach an agreement and have settled all or part of your issues. Your proposed settlement will only cover the issues you and the mediator agreed to during mediation. If you couldn’t come to terms on all the issues, you’ll need to either settle them later or ask a judge to rule on them following a court hearing.
Some facilitators will assist you in filing your divorce paperwork with the court, while others won’t. You should enquire about the range of services that prospective mediators offer.
The settlement agreement will be incorporated into the ultimate divorce decree if the judge approves it. The settlement’s conditions can be enforced just like any other court order.
Who should not choose mediation?
Even when a couple is going through a divorce and has a lot of issues to work out, mediation can often, if not always, be successful. Although most pairs should give mediation a shot, not all of them should participate. You might not benefit from mediation under the following circumstances.
If you’re getting a divorce due to domestic violence
Mediation is not for you if you’re experiencing or have recently suffered domestic violence or are at risk of it. Instead, you should seek help from a lawyer or another qualified professional. If there has been violence in the marriage but it happened in the past, you should carefully consider the benefits and drawbacks of mediation. Depending on the situation, meeting on an even playing field during a mediation session may be empowering for some abuse victims.
Additionally, most mediators will exercise caution to guarantee that mediation takes place in a secure environment such as by meeting both spouses separately.
When your spouse has proven to be deceitful or untrustworthy
Mediation is likely not worth your while if you believe your spouse is lying, misusing money, or hiding assets. In order to negotiate effectively, both spouses must be honest, make full disclosures, and comply with the rules.
When you suspect that your partner wants to stall the divorce
A individual who wishes to prolong the litigation or avoid having to pay child or spousal support can take advantage of the mediation process. They may do this by consenting to it and then delaying it since the mediator cannot compel either one of you to do anything.
When one of you is blaming the other or has retained legal counsel
A fruitful settlement is less probable, but not impossible, when one spouse alleges the other is legally liable for the relationship’s dissolution (a claim you cannot make in all jurisdictions). If your partner has already retained legal counsel, you need to seriously consider doing the same. Based on the specifics of your case, your attorney will assist you in determining whether taking part in mediation is worthwhile.
Should I choose mediation if me and my spouse don’t agree on several issues?
Divorce mediation is a fantastic option for divorce cases without the types of problems mentioned above. It works best when both parties come prepared to make concessions.
Don’t dismiss mediation merely because you and your partner have very different perspectives on a certain matter; in other words, don’t abandon the idea before you’ve even started. Due to the effectiveness of the mediation process, many disputes that initially appeared to be impossible to overcome are eventually settled.
What are some benefits of divorce mediation?
While there are many benefits to divorce mediation, here are the most common benefits.
- Since the spouses can pay the mediator jointly rather than individually, mediation can be more affordable.
- Since the parties can skip court proceedings, mediation can save time.
- Due to the need for direct communication to resolve issues, mediation encourages open communication between the spouses.
- The choice to mediate is yours. The mediator can be chosen by both partners, and neither partner is required to follow the mediator’s recommendations.
- It is informal to mediate. Both spouses can move at their own comfortable pace without feeling rushed to make decisions.
- If you continue to co-parent, mediation may lead to a stronger long-term relationship between you and your spouse.
- Given that divorce mediation might be more amicable and peaceful, mediation could be easier on the kids.
- You can maintain control over your divorce through mediation. The decisions are being made by you, not a judge.
As you’ve seen, the mediation procedure can be effective for divorcing couples who are able to communicate cordially. It’s great for couples who are willing to work together to find solutions and have faith that the other partner is not abusing the right to information. It’s also great for couples who feel they do not require a legal representative to fight for their rights.
What are some disadvantages of divorce mediation?
While it’s beneficial for most divorcing couples, mediation may still have its drawbacks. Some of the disadvantages of divorce mediation are as follows:
- If the parties are unable to communicate honestly with one another or if your partner is more aggressive than you are, mediation is not helpful.
- There’s a chance the mediator won’t ever learn if your partner is hiding assets. The discovery procedure and an independent investigation can be used by your attorney, if you have one, to find out if your partner is hiding any assets.
- If you and your partner cannot settle your differences through mediation, you will need to hire an attorney to help you through the process, which will only make it more inefficient.
- Violence and other pressing issues cannot be resolved through mediation.
- A fair result is not a guarantee of mediation.
You may benefit from choosing a mediator who is also a practicing attorney to help you avoid many of these pitfalls. While you will still need individual representation if you don’t reach a mutual settlement through mediation, it’s more likely that you will reach one. And with a mediator who is also a practicing attorney, you can be assured that your final agreement will not have any loopholes in it.
Choose an experienced divorce mediator for your case
The mediation process for divorce can be extremely difficult. You can depend on the experience and expertise of the divorce mediation lawyers at the offices of Garwood Reeves when you require an attorney to serve as an impartial mediator. You can also count on us when you need a skilled family law attorney who can represent you during your divorce mediation. Garwood Reeves has more than 30 years of experience effectively assisting clients in obtaining beneficial outcomes through divorce mediation. We have the expertise and knowledge you need to achieve the best result in your case. Call Garwood Reeves at (619) 692-8100 right away to schedule a mediation session with one of our knowledgeable San Diego divorce mediators or contact us now.