Divorce mediation is a non-adversarial, alternative dispute resolution process led by a caring, impartial and neutral professional mediator that helps divorcing parties respectfully resolve the issues of divorce, out of court.
There are many benefits to mediating a divorce. Here are just a few...
Regardless of whether you’re the initiator of the divorce proceedings or a reluctant husband or wife, you have a choice in which path forward you take.
The role of the mediator in a divorce is to:
These issues will vary in complexity based on your unique situation and may include, but are not limited to:
Along with the four main issues listed above, an experienced mediator can also help couples resolve a host of other important issues such as who will care for the family pet, religion your children will be raised in, etc.
Let's take a closer look at each of the four main issues...
Once you and your wife or husband divorce and establish separate households, there isn’t much you can do to eliminate the loneliness you might feel on nights your kids aren’t with you.
But you can make things easier on yourself and your children by negotiating a comprehensive parenting plan and time sharing arrangement.
In addition to the standard topics such as where the kids will spend nights, weekends and holidays, you’ll also need to agree on things like how they’ll get from house-to-house, who will help them with their homework and who will attend parent-teacher conferences, just to name a few.
Do you travel overnight for work?
Will you need to change up the schedule occasionally?
And what about overnight guests during parenting time? It may be hard to think about that now, but there will come a day when you’ve moved past your divorce and you'll start seeing someone new.
These issues and many more must be covered in a good parenting plan.
The well-being of the children is often the most important concern for divorcing parents. And mediation is the best option if you want to create a thorough, customized and flexible parenting plan that's in the best interest of your kids.
Many people think child support is a simple calculation. But there’s so much more to it than simply calculating a support amount.
As it turns out, it's quite a complex negotiation.
There are a number of factors that can come into play when determining child support. And to make matters worse, every state in the US has a different formula.
Most parents think child support calculators output a specific dollar amount and that’s that. But the reality is these guidelines are just a starting point for negotiations.
Not only that, but there are a number of other expenses not covered by the basic support amount.
Figuring out who pays for what, who approves which expenses and what contribution is required from each parent can be tricky. And requires a skilled mediator to help moms and dads ensure the financial needs of their children will be met.
Much like when it comes to developing a parenting plan, if you have children, mediation is a great way to put them first and ensure your children don't become economic victims of divorce.
The process of splitting marital property and debts in some/most states (including Illinois, New Jersey, New York, Pennsylvania, and Michigan, among others) are done under the guiding principles of Equitable Distribution. While it's done under the guiding principles of Community Property in California, Washington, and 7 others.
Regardless of whether you live in an "equitable distribution state" or a "community property state," it doesn't necessarily mean assets and liabilities will be split 50-50. It's up to the parties to decide.
Unless, of course, a judge gets involved and then they get to decide in court.
No matter whether they’re assets or liabilities, you’ll need to value them, negotiate how they'll be divided and move them from one column to another.
You need to be aware of the tax implications of certain transactions. And the paperwork required in executing such transactions. You’ll also want to be clear on what exactly is a marital asset or liability as some can be both marital and pre-marital.
The division of marital assets and liabilities is less about the law and more about money and negotiation. Making mediation an ideal forum to negotiate and come to agreement on this issue.
Alimony is the most emotional, most challenging and most difficult topic of all.
Simply stated, alimony is a payment from one ex-spouse to the other and is intended to aid the lower earning spouse in making the transition from married to single. It is not intended to unjustly enrich the recipient party, or punish the paying party.
It is strictly based on need and is gender neutral. Both men and women can receive alimony.
But unlike child support in which each state is required by the federal government to have a guideline calculation, there are very few guidelines available for alimony. And the ones that exist are open to interpretation and are quite controversial.
In addition to the difficulty in coming to an agreement, there are a host of other implications such as:
We rarely encounter any of our clients choosing to use the alimony amount that any guideline in their state outputted. Instead, they want to discuss and negotiate and amount and duration they both think is fair.
Alimony is less about the law and more about money and negotiation. Once again making mediation the ideal forum to negotiate and come to agreement on this delicate issue.
Good candidates for divorce mediation meet all of the following criteria:
Couples who want an experienced professional to help them identify and discuss the issues while retaining full control over the decisions they will make and full control over their settlement agreement;
The divorce mediator will help the parties identify the issues and present a number of possible solutions, but will not give the parties legal advice or tell either party what to do.
Couples who are willing to engage in an honest and good faith negotiation;
Mediation is a transparent process so both parties must be willing to openly disclose all relevant information, whether financial or otherwise, to the mediator and to the other party and ensure the information is accurate, complete and truthful to the best of their knowledge. If either party is hiding assets or defrauding the other, mediation should not be used.
Couples where both spouses are willing to voluntarily attend and actively participate in divorce mediation;
If one party wants to mediate but the other does not, mediation will not be a viable option for that couple's divorce.
Spouses who are both mentally capable of making their own decisions;
Each party must be of sound mind and have the capacity to think, reason and understand for him/herself.
It doesn't matter if you are a high conflict or low conflict couple, whether one of you controlled the finances or you both balanced the checkbook, or if you have or don't have kids.
There is no legal requirement that you must have an attorney and many people specifically choose not to involve attorneys and instead have a no lawyer divorce.
However, there are some people who feel the need to have a single meeting with a family law attorney after mediation and others who may feel the need to speak to one throughout.
No! You do not need to have everything decided before starting your mediation negotiations.
The only thing you need to agree on is the decision mediate itself. Your mediator (if you choose wisely), is a skilled professional who will help you negotiate all issues.
In fact, many couples specifically wait until mediation to discuss all of the issues.
Divorce is a complex matter and you may not “know what you don’t know” when it comes to the issues you need to identify, discuss and resolve in order to come to a complete agreement.
There are four characteristics of an experienced and competent mediator for divorce:
Some attorneys feel that attending law school provides them the skills they need in order to practice mediation.
But while they may have a grasp of family law matters, they may or may not know how to be an effective mediator. And they may not know how to be fully neutral. They also may not have the financial acumen required to resolve the many complex financial issues surrounding a divorce dispute.
Non-attorney mediators may have taken a mediation training class and understand basic mediation techniques, but may or may not in-depth knowledge of the issues or have the financial expertise required to be an effective mediator.
For many couples, the decision to mediate is a very smart choice. But divorce mediation is an unregulated profession and there's no such thing as a certified mediator (other than a term some mediation associations designate to their members), so it’s also critically important to hire a good mediator.
"Believe it or not, divorce is more about finances than about divorce law. In fact, three of the four main issues that need to be resolved during a divorce are financial in nature (and the fourth is about parenting.)
So you are much better off choosing a divorce mediator with a financial background like me than a family law attorney without one."
- Divorce Mediator Joe Dillon
Every mediator's process (if they have one) is different, so we can only speak to how long divorce mediation takes working with us. Most couples need just 3 to 4 sessions with our divorce mediator and on average, the family mediation process takes 2-3 months from start to finish.
Some of that time is spent gathering documents and submitting them to the mediator, some is spent negotiating the issues and some is spent by the mediator drafting the divorce agreement (which in mediation is called a Memorandum of Understanding) and other paperwork.
Our sessions take place online via phone and easy-to-use meeting software.
In fact, we pioneered the use of online divorce mediation and have been successfully mediating in this format since 2011.
Divorce mediation costs and fees vary significantly based on the experience and skill level of the mediator, the scope of services they include and individual case complexities.
They also vary from state-to-state.
Every private mediator has his/her own fee structure, but the average total cost of a divorce when mediation is utilized is generally between $7,000 and $10,000.
Who pays for mediation is up to the parties (you and your spouse) to decide.
Since both spouses benefit from the mediator's guidance and expertise, most couples choose to pay for mediation together (equally).
However, on occasion, one spouse may choose to pay for the total mediation fee him/herself.
There's a lot more to these divorce methods and how they work, but here are just a few of the many differences between using divorce mediation vs a lawyer.
In attorney-driven divorces, each spouse hires his/her own respective attorney to represent them.
The two lawyers will argue back and forth in court on issues of child custody and a parenting plan, division of property, alimony and child support.
Each divorce lawyer will create strategies to fight and weaken the other party's position in order to "win" the divorce case for their respective client - even if it's at the detriment of the other spouse, the couple's children or the overall health of the family unit.
Traditional divorce litigation using attorneys is adversarial, contentious, expensive and takes a long time to complete.
In divorce mediation, both spouses work with one mediator.
The divorce mediator is a neutral third party who does not take sides and does not give legal advice. Instead, the mediator helps both spouses communicate, negotiate directly (privately and out of court) and resolve all issues that pertain to their divorce.
Couples have the opportunity to voice their individual concerns, be heard and have direct input into the terms of their settlement agreement.
In mediation, there is no "win-lose" as the divorce mediator's goal is to help the couple reach fair and amicable solutions that prioritize their children's best interests.
There are many differences between divorce mediation and collaborative law including cost, time to complete and approach.
The Collaborative Law Process is a hybrid between a traditional attorney-led divorce and divorce mediation.
Each party retains their own respective lawyer trained in the collaborative process to represent them. Both spouses and their respective counsel sign a contract called a “participation agreement” that states that they are all committed to using cooperative techniques rather than combative tactics to resolve custody, support, etc.
In the Collaborative Process, a series of meetings take place between both spouses and both lawyers and possibly other outside professionals such as a divorce coach or therapist, child specialist, accountants or financial planners as needed to negotiate and try to come to agreement on the issues.
If agreement cannot successfully be reached on all relevant divorce issues using the Collaborative Divorce Process, the lawyers will be disqualified from representing the two parties as they continue into the litigation process.
While for some problematic cases, Collaborative Process can be worth a try before resorting to divorce litigation, but it can get very expensive and drawn-out, and there are no guarantees of success.
In the mediation process, there are three participants working together in direct negotiations: each spouse and one mediator.
The mediator is neutral and helps the two parties negotiate directly to resolve all required issues pertaining to their divorce. Couples have direct input into the terms of their agreement.
In mediation, there is no "us against them" as the goal of the mediator is to help the parties reach an agreement they are both satisfied with and that keeps their children front and center.
More about the differences between Collaborative Law and Divorce Mediation.
Like many decisions in divorce, the answer to the question can mediation be binding is up to you and your spouse.
While the two of you are mediating, you both still reserve the right to change your mind at any time during the negotiations. So during the negotiation phase of the process, mediation is not binding.
Choosing to use mediation is a great first step towards making your divorce go as smoothly as possible. But here are some additional tips to ensure your case stays on track:
The difference is in what you choose to do with your Agreement after mediation is completed.
To start mediation, take the next step and book an initial mediation meeting for you and your spouse.
There's a big difference between a highly skilled, neutral third party divorce mediator who can successfully guide you to resolution in a fair and equitable way versus a lawyer who is a one-sided advocate and not necessarily interested in settlement, but rather in winning at all costs – even at the expense of the other party, your children or your family.