The Option of Mediation in Divorce or Legal Separation

When a couple files for divorce or legal separation, they may have different ideas on issues such as alimony, child support, child custody and/or visitation, and property and asset division.  These disagreements do not need to be heard before a Judge; rather, these are issues that you and your spouse or domestic partner could resolve outside the courtroom.  Not only will this save time and money, but also stress, heartache, and possibly minimize any lingering animosity.  One such method to assist you in resolving your differences is by attending mediation. The following is what you should know about mediation in divorce or legal separation.

What Is Mediation in Divorce or Legal Separation and How Does It Work?

Mediation is an informal part of the formal court process.  The parties hire a mediator, an neutral third party who is usually a lawyer or retired judge, to meet with the parties in a professional office to see if the mediator can bring the parties together for purposes of settling some, if not all, of the issues in your case.  If you are represented by counsel, your attorney attends the mediation with you.  Before the mediation, you will submit a brief to the mediator which details your legal position on the issues and the facts that support your case.  Mediation in divorce or legal separation is voluntary, except if the parties cannot agree on child custody and visitation, then mediation is court-ordered.  Mediation can last a few hours or several days.  An important distinction between a mediator and a judge or arbitrator is that a mediator has no authority to make legally binding orders or to compel either party to do anything.  The mediator’s job is to help the parties negotiate a settlement by setting forth the strengths and weaknesses of each party’s case.   If the parties come to an agreement at mediation, a mediation settlement agreement is prepared.  The agreement is not valid until the parties both sign a written agreement confirming its terms.

What Are the Advantages of Mediation in Divorce or Legal Separation? 

There are several advantages to using the mediation process to resolve your family law issues.

  • If you settle your case, you know what you are getting. That is, a settlement eliminates the risk of a contested trial or hearing in which you may lose.  If you settle your case, you know the terms of your agreement and the amount of money or custody time that you will be getting.
  • You can still go to court to enforce an agreement. If your spouse or domestic partner signs a mediation agreement and does not abide by its terms, you still have the option of going to court to enforce the mediation agreement.
  • You save money, probably. Separation is expensive.   The parties can spend a considerable amount of time and money in the litigation and pre-trial process.  Many parties prefer mediation as a way to resolve their differences in the interest of saving money on attorney’s fees and litigation costs.
  • It is your decision whether to settle your case. In mediation, the parties decide whether they will settle their case.  In a court of law or in an arbitration, the judge or arbitrator makes the final decision.
  • It is a less stressful option. Divorces are often one of the most stressful times in a person’s life.  Litigation is also one of the most stressful times in a person’s life.  Bring these two together and the stress of dealing with divorce or legal separation is often too much for a couple or creates a tremendous amount of stress for their loved ones.  Mediating a successful settlement out of court can eliminate a lot of the stress that comes with divorce or legal separation proceedings.
  • You don’t have to settle all of your issues with your spouse or domestic partner. That is, you can settle just some of your issues with your spouse or domestic partner and litigate the rest of the remaining issues.   The choice is yours.

What Are the Disadvantages of Mediation in Divorce of Legal Separation? 

There is no real disadvantage to attending mediation in divorce or legal separation.  In some cases, such as contested child custody and visitation, it is required.  These are some of the reasons why a couple may forgo or cut short mediation in favor of litigation.

  • Your spouse or domestic partner has no intention of settling the case. If your spouse or domestic partner has told you or your lawyer that he or she have no intention of settling your case or his or her behavior indicates such, mediation is often unproductive.  A successful mediation requires a meeting of the minds.  If you and your spouse or domestic partner are so far apart that you cannot come to an agreement, then litigation is sometimes your only option.
  • It is another expense. Ironically, it is often less expensive and time consuming to simply try your case.  Mediation require the paid services of a mediator, preparation of briefs, and attendance at the mediation.  If there is very little likelihood that your case will settle, then litigation could be the better option for you.
  • You have to see your spouse or domestic partner during prolonged negotiations. Mediation often takes hours or days to complete.  Both parties are required to be present (although they can be in separate rooms).  If the thought of spending that much time with your spouse or domestic partner is distasteful to you, it will make mediation more difficult (but not impossible).  If you simply cannot handle dealing with your spouse or domestic partner at arm’s length and you are not otherwise required to attend mediation, you do have the option of letting your attorneys handle your case and your attorneys can negotiate by phone, email, and correspondence.
  • A party has wildly unrealistic expectations. A successful mediation in divorce or legal separation requires that both parties have a realistic understanding of the issues involved in their case, the case’s value, and the law as it applies to their case.  Many parties only hear what they want to hear or have such unrealistic expectations of the result of their case that settlement is very difficult, if not impossible.
  • You could do better at hearing or trial. There is almost always the possibility that a party will fare better at trial than through a mediated settlement.  If this is the case, you do have the option of proceeding to a hearing or a trial in the hope that the results will be more in your favor than your spouse or domestic partner is willing to offer you in a settlement.