Divorce mediation is an alternative process for you and your spouse to amicably negotiate and resolve your divorce and related matters. Mediation occurs when you and your spouse elect a neutral person (the mediator) to discuss openly the issues involved in the divorce such as custody of the children and parenting time, child support, division and distribution of the marital property, and alimony. Divorcing couples mutually choose mediation to avoid the cost of attorneys, the expenses of court filings, and the delays caused by the court process. Divorce mediation can provide a less-adversarial environment for you and your spouse to talk about the issues. Mediation is a good option for some couples considering divorce, but it is not always the best choice. Both parties must be fully open and agreeable to the divorce mediation process.
WHAT IS THE PROCESS FOR DIVORCE MEDIATION?
First, you and your spouse will select a mediator. Then, there is typically an initial consultation where the mediator sits down with you and your spouse to discuss the facts of the divorce and whether mediation may be beneficial. Once it is determined that you both want to move forward with mediation, the mediator will act as an impartial third party to help facilitate an agreement between you and your spouse that covers aspects of the divorce. This is often accomplished with a set of written questions from the mediator for both you and your spouse, a request for relevant financial documents, and then a series of meetings with the mediator. Each meeting usually has a specific agenda for discussion.
HOW DOES A MEDIATOR CREATE AN AGENDA?
In order to create the agenda, the mediator will first request the information necessary to understand the full picture of the issues to be resolved. For instance, in order for the mediator to set the agenda for dividing marital property, the mediator must first request and receive from both parties the information for the assets and liabilities that they have accumulated. This will include the values of retirement accounts such as 401ks and IRAs, brokerage accounts, the marital home, a vacation home, a time-share, savings and checking accounts, etc. When the mediator receives all of this information, the mediator can then set the agenda to discuss the mediator’s recommendations for dividing each of the assets. The mediator will suggest dividing the total value of the property by assigning percentages to each of you, and if the parties agree on the percentage, the mediator will then help to pick and choose how to divide each of the assets. The mediator will attempt to reconcile the other issues, i.e. custody and parenting time, alimony, etc.
WHAT HAPPENS WHEN WE REACH A SETTLEMENT?
When you and your spouse agree to a settlement, an agreement will be memorialized in writing by the mediator, either through a “Memorandum of Understanding” or a “Marital Settlement Agreement”, depending on the mediator being used (the mediator may or may not be a lawyer). If a Memorandum of Understanding is prepared by the mediator, couples must consult with their own divorce lawyer in order for the lawyer to draft a formal Marital Settlement Agreement since a Memorandum of Understanding is not a legally binding agreement. Most mediators are lawyers, so this is often not an issue. If the mediator is a lawyer, the mediator can draft the formal Marital Settlement Agreement. If a Marital Settlement Agreement is prepared, it is highly recommended that you have this agreement reviewed by a divorce lawyer prior to signing, as very specific provisions and language should be included to protect you and your children’s interests. For example, it should include specific provisions including a custody schedule and custody terms, provisions that spell out what happens if one spouse was to relocate, and provisions regarding the equitable distribution of marital property, such as distribution amounts- from a 401(k) or whether one spouse will keep the marital home or whether the home will be sold.
HOW DO I OBTAIN A DIVORCE DECREE?
The mediator will often assist with the filing of a divorce complaint. This starts the divorce process and the mediation process will usually occur before or after the divorce complaint is filed. When you and your spouse are ready to request a divorce decree from the Court, a formal request is submitted to the Court with the signed Marital Settlement Agreement. The Agreement is incorporated into the divorce decree and it will be legally binding on you and your spouse.
WHAT THE PROS AND CONS OF MEDIATION?
The benefits of divorce mediation are:
- Mediation can be inexpensive because the parties can collectively pay for the mediator instead of each of them paying for an attorney.
- Mediation can save time because the parties can avoid court procedures.
- Mediation promotes an open dialogue between the parties because the parties are forced to interact directly in order to resolve the issues.
- Mediation is voluntary. Both spouses can agree on a mediator and neither spouse is bound by the suggestions of the mediator.
- Mediation is informal. Neither spouse should feel pressured to make decisions and each spouse can proceed at a comfortable pace.
- Mediation may result in a better long-term relationship with your spouse, which can be helpful if you continue to co-parent.
- Mediation may be easier on children since the divorce proceedings may be more peaceful and amicable.
- Mediation helps you stay in control of your divorce. You are making the decisions, not a Judge.
As you can see, the mediation process can work for divorcing couples who can communicate amicably with one another, who can commit to problem solving and who trust that the other spouse is not taking advantage of the free exchange of information, and who believe they do not need someone advocating for their rights under the law.
The disadvantages of divorce mediation are:
- Mediators do not give you legal advice. When you do not have an attorney, no one is looking out for your best interests. No one is advising you so that you can make the best decisions for you.
- Mediation is not the only method of amicable resolution of the issues in divorce. When you decide to undergo the divorce process with the help of a divorce attorney, you and your spouse can still settle all of the issues through amicable negotiations and avoid court appearances; however, you will now be doing so with an attorney who can guide you and help you reach a good resolution.
- Mediation is not useful if the parties cannot engage in open dialogue with each other or if your spouse is more aggressive than you.
- If your spouse is hiding assets, the mediator may not ever find out. If you have an attorney representing you, the attorney can use the discovery process and independent investigation to determine whether your spouse is hiding assets.
- If you and your spouse cannot resolve the issues with a mediator, you will have to go through the process with an attorney anyway and this will actually cause more inefficiency in the process.
- Abuse and other urgent matters cannot be handled by mediation.
- Mediation does not guarantee a fair outcome.
Most divorcing couples should not utilize the mediation process because most issues in any divorce are final once they are resolved. When divorcing couples utilize a mediator, they usually do not have an attorney who can advise them. In other words, nobody is looking out for your best interests because the mediator is just trying to strike a deal for both of you, without having any fiduciary duties towards either of you. As such, in most situations the cons outweigh the pros.
There is no cookie-cutter approach for divorcing couples. Each party to the divorce should assess their own strengths and weaknesses and should carefully consider these pros and cons before deciding on whether mediation is the best option.
Contact The Martin Law Firm, P.C. today if you have questions about whether divorce mediation is right for you. A divorce lawyer will discuss your case over the phone at no charge. Call us today at (215) 646-3980.