If you're considering divorce or are already in the process, you're probably worried about how much it will cost. If you and your spouse can agree on a fair settlement of all the issues in your divorce, your divorce will cost less and take less time. If you can't agree on your own, mediation can help.
What Is Divorce Mediation?
In a traditional divorce, both spouses hire full-scope family law attorneys who represent them throughout the divorce, including at court hearings. And if the lawyers don't manage to negotiate a comprehensive settlement, a judge will have to resolve any remaining disputes in a divorce trial.
Mediation can be a way to avoid the expense, stress, and time of a trial. In divorce mediation, a neutral professional who's trained in dispute resolution (usually a family law attorney or mental health professional) meets with both spouses and helps them identify their divorce issues and find their own solutions. Spouses typically give the mediator pertinent facts and documents in advance and then meet with the mediator one or more times in an attempt to resolve their disagreements. If the mediation is successful, it will lead to a marital settlement agreement that will be incorporated into a final divorce decree.
Private Mediation Versus Court-Ordered Mediation
The mediation process is the same, whether you do it privately or through the courts. But there are differences you need to be aware of.
Private Mediation
With private mediation, you and your spouse volunteer to pursue an amicable resolution of your marital issues.
Many couples take this route before starting the divorce, in order to save money and minimize the angst that court proceedings tend to create. Also, if they're able to reach a comprehensive settlement agreement that covers all of the issues in their divorce, they can file for an "uncontested" divorce. The procedures and rules vary from state to state, but the uncontested divorce process is almost always quicker, easier, and cheaper than a contested divorce.
Be aware that with private mediation, you'll have to pay the mediator. But normally, you and your spouse will split the fee between you.
Court-Ordered Mediation
This type of mediation occurs after the divorce is already in progress. The juncture at which the court orders mediation in these areas depends on your state's divorce laws.
In many states, courts require divorcing couples to mediate child custody issues soon after they've filed for divorce, if they haven't already reached an agreement on their custody and visitation arrangements. This makes sense, considering how emotionally charged this topic can be, and the major impact long-term custody disputes can have on the children. Also, some divorces can take a long time, and there may need to be temporary custody arrangements in the meantime.
If the laws in your state allow courts to send divorcing couples to mediation of financial issues, that may not happen until further along in the divorce. It doesn't make sense to go to mediation until both spouses (and their attorneys, if they have them) have a complete picture of their finances. This takes time, often requiring the production of many documents, like tax returns, account statements, and property valuations. And some couples with complex financial issues may require the input of financial experts, such as forensic accountants or certified financial analyst.
The Pros and Cons Private and Court-Ordered Mediation
Private mediation is more likely to result in a settlement agreement than court-ordered mediation. That's partly because both spouses have voluntarily chosen to take this route, so they have the proper mindset required to cooperate and resolve issues.
The main drawback to private mediation is cost. Still, successful divorce mediation will save you money in the long run, especially in attorney's fees. And even if your mediation doesn't lead to a complete settlement, you and your spouse will have a clearer understanding of what you can and can't agree on. Hopefully, that will streamline the divorce process somewhat by cutting down on the number of disputes you have to deal with in court.
The main benefit of court-ordered mediation is that you're likely to pay very little (or even nothing) for the service. The downside is that there's usually a limit on the amount of time allotted for the process (one or two hours). If you've made no headway in settling your case up to that point, you or your spouse may decide that mediation is a waste of time. So although you're always free to continue with private mediation, you may be less likely to do so.
Do You Need a Lawyer for Divorce Mediation?
A lawyer can represent you during mediation, although mediators frequently prefer that the lawyers not be present at the mediation sessions. This makes for a less adversarial environment.
But you don't necessarily have to hire a full-scope attorney if you're hoping to reach a divorce settlement through mediation. Some attorneys may agree to work with you on a consulting basis—for instance, to help you prepare for mediation, to draft a settlement agreement, or to review an agreement that you and spouse worked out during mediation.
Having an attorney to turn to for answers during the mediation process can be a big help. So you may want to speak with a family lawyer who can help explain the best way forward.