What Is Divorce Mediation?
Divorce mediation is a process that can help a couple find a fair and practical way to end their marriage, divide their property, and, if minor children are involved, work out parenting issues.
1. Types of Issues That May Be Mediated
In divorce mediation, a mediator works with a couple to help them reach their own agreement on the issues related to the end of their marriage. As in other types of mediation, the mediator has no authority to impose a decision.
A couple in mediation will likely try to work out the same issues that lawyers would help a divorcing couple negotiate or fight out in court in an adversarial divorce:
• Division of property (assets and debts). How should jointly owned or marital property (which may include real estate, small business ownership, stocks, automobiles, and household and personal items) be divided? Similarly, how should marital debts such as college loans, mortgages, and outstanding credit card debt, be divided?
• Spousal maintenance (alimony). How much money, if any, will one spouse regularly pay to help cover the other’s living expenses, and for how long?
• Child custody and visitation. Will only one parent have custody of the children, or will custody be shared? How often, for how long, and under what circumstances will the children spend time with each parent? How will the parents resolve major issues like education, medical treatment, and discipline?
• Child support. How much money will one parent regularly pay the other to help cover the cost of raising the children?
2. Types of Divorce Mediation
There are two basic—and very different—types of divorce mediation offered throughout the country today: court-sponsored mediation and private mediation.
a. Court-Sponsored Mediation
Court-sponsored mediation occurs in those states where courts can require couples to mediate issues of child custody, visitation, and sometimes child support.
In some of these states, all couples with child- related issues are routinely ordered to mediation. In others, judges have the power to order mediation on a case-by-case basis. (The frequency with which judges actually order spouses to mediation varies greatly from one court district to another.)Court-sponsored mediation generally doesn’t last long: just one or two sessions is typical. This is due, in part, to the high volume of cases passing through the mediator’s office, and to the limited scope of most court-sponsored mediation—couples usually mediate only issues relating to their children, not disputes over property.
Court-sponsored mediation is usually free or provided at nominal cost. Mediators in these programs are often full-time court employees.
b. Private Mediation
In private mediation, couples voluntarily retain the services of a mediator of their own choosing. The couple can choose to mediate all or most of the issues in their divorce, or to tackle only a few issues. A half dozen or more lengthy sessions may be required, depending on the number and complexity of issues being addressed.
Fees vary widely, from about $100 to $300/hour per couple, with $150 per hour being typical in a mid-size city. The mediators tend to be solo or small group practitioners who specialize in divorce and family mediation.
Court-Sponsored vs. Private Divorce Mediation
| How cases get to mediation | Parents are ordered to mediate by the court | Couples agree voluntarily to hire private mediator |
| Cost | Usually free (but there may be cancellation fees) | Ranges widely from $100 to $300 an hour per couple, depending on geographical area and other factors; lower fees available at some community dispute centers |
| Issues addressed | Usually limited to parenting arrangements (custody and economic) support and property issues in some states | Couple can mediate all issues (custody and visitation); may include child or just a few, as they choose |
| Confidentiality | Process is confidential, unless mediator has the power to make a recommendation to the court, or child abuse is revealed | Process is confidential, unless child abuse is revealed |
| Length of time | Often just one or two sessions of an hour or two each; some programs offer more sessions | Typically, four to eight sessions of a couple of hours each, spread over a few months; length depends on whether the couple has minor children or complicated finances to work out |
| Involvement of lawyers | Lawyers may, but need not, attend sessions; spouses can consult a lawyer other adviser if they wish | Lawyers may, but need not, attend sessions; spouses can consult a lawyer or other adviser if they wish |
3. Advantages of a Mediated Divorce
Divorce mediation offers a number of benefits as compared to a litigated divorce.
These include:• Cost savings. Divorce mediation almost always costs less than a two- lawyer adversarial divorce. Even including the cost of consulting lawyers for each spouse, mediation still costs a fraction (perhaps one-third or less) of what it costs to fight out a divorce in court. Mediation greatly reduces the amount of time lawyers need to spend on a case (and therefore, the legal fees each spouse will have to pay).
• Time savings. In private divorce mediation, a couple could reasonably expect to work out an agreement on all major issues—children and economics—in half a dozen sessions of one to two hours each, over a period of three to four months. A couple with no minor children (or no major disputes over custody and visitation) and gardenvariety, middle-class property issues might finish in half that time. By comparison, two lawyers negotiating the same range of contested issues on behalf of their clients, while at the same time preparing for a contested court action in case negotiations fail, would probably spend a lot more time—running up hundreds of billable hours in the process—to reach a comprehensive settlement.
• Success and satisfaction rates. Couples who mediate—whether in court- sponsored programs or privately—more often than not reach agreement on at least some of the issues addressed. Regardless of whether couples reach an agreement, they report a high level of satisfaction with the process, often because it gave them a chance to discuss their concerns with someone who was willing to listen.
• Post-divorce relationship. Studies have shown that couples who mediate have more stable agreements (that is, they don’t need to modify them as often), more generous visitation plans for the noncustodial parent, fewer missed payments of child support, and a more cordial relationship with each other, than couples who go through an adversarial divorce.
4. Conditions for Successful Mediation
Successful divorce mediation requires that both spouses be able to participate effectively.
If either spouse is so impaired psychologically that sustained, rational discussion is impossible, mediation will not work. (A good mediator will usually be able to tell during the first session if a spouse won’t be able to mediate effectively. If so, the mediator will terminate the session and refer the couple to a social service agency or another professional who can help, such as a therapist.)On the other hand, mediation does not require you and your spouse to like each other, or even to be on speaking terms outside the mediation room. It is simply not true, as some divorce lawyers tell their clients, that mediation works only for the relatively small number of couples who remain friendly while they are splitting up. Even couples who are dissatisfied with their marriages and angry at each other can mediate successfully.
5. The Mediation Agreement
When mediation is successful, the mediator will write up an agreement detailing, in plain language, the terms of the settlement. This can be a brief document that covers just the basics—dividing a moderate amount of property and describing the basic child custody and visitation ar- rangements—or a lengthy agreement that specifies exactly how the couple will divide a long and complicated list of property and how they will handle a number of parenting issues that are likely to arise.
In any type of divorce mediation, the agreement must ultimately be submitted to a judge for approval as part of a legal divorce decree.
B.