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Published: 2008-03-26

Frequently Asked Questions About Divorce Mediation



Why Should I Consider Mediation For My Divorce?

Mediation allows separating and divorcing couples to take control of planning their own lives, and allows them an environment in which to make good decisions about their future. It is especially beneficial for parents, who though separating, will need to continue making joint decisions about their children well into the future. The decision-making process learned in mediation can serve as a model for future communications. Also, mediated settlements have a consistently higher compliance rate because the husband and wife have created their own agreement.

What Does The Mediator Do?

A family law mediator is a neutral party specially trained to help couples resolve the issues in their divorce. The mediator facilitates the communication between the parties by making sure each party is given an uninterrupted time to speak, asking a party to restate or explain a point when necessary, and asking questions to make communication clear. The mediator also provides information about the legal system, how issues may be viewed by lawyers or judges, and what alternatives there are for solving issues. When necessary, the mediator will refer the couple to third party experts for services such as appraisals.

How Does the Process Work?

The couple and the mediator meet in a series of mediation sessions, usually 1 - 2 hours long.

1st meeting: The couple and the mediator identify the issues needed to be discussed and the order in which they will be discussed, then decide what information needs to be gathered and shared. Between the first and later sessions the couple gathers all relevant financial data, or if necessary, the opinions of experts such as appraisers or accountants, with this material treated with the same care and concern as would be the case in the adversarial process.

Further Meetings: Discussions revolve around how to compromise on the various issues in order to meet the needs of both parties. The mediator assists by providing information about the court system and common ways divorce issues are resolved.

The Agreement: When an agreement has been reached on all issues, the mediator drafts the agreement for review by each of the parties and their attorneys, if any.

How do the Court Papers to Start & Finish the Divorce Get Filed?

If the mediator is an attorney, the attorney can assist the parties in filing all papers with the court, including starting the dissolution of marriage action, preparing and filing the necessary disclosure documents, and preparing the agreement, judgment, and final papers to be filed with the court.

Will We Have to Appear in Court?

No court appearances are necessary by either party.

How Long Does Mediation Take?

The complexity of the issues and ability of the individuals to be flexible as they negotiate a fair agreement determines the length of the mediation. Every case is different, but the average case usually takes at least three to four two-hour mediation sessions, spread out over at least a month or two. More complex cases can take four to six months to complete.

What Will it Cost?

In a typical case, parties can expect to pay a combined total of between $3,000 and $4,000 for cases needing three to five mediation sessions. This includes $900 - $1,200 for their mediation sessions, $900 for preparation of the Marital Settlement Agreement, and an additional $1,200 for preparation of the Petition, disclosure documents, and the judgment. Court filing fees are usually about $195. The mediation sessions are paid for on a pay-as-you-go basis, the court documents and Marital Settlement Agreement are paid for in advance.

The cost of each party's attorney for consulting and to review the agreement and judgment is in addition to the cost mentioned here.

Is Mediation Cheaper Than Using Lawyers to Handle a Divorce?

Many lawyers charge a retainer fee of between $2,500 and $5,000 for most average cases, and bill the client for services in addition to the time covered by the retainer. The retainer amount will be substantially more in complex cases, so the cost of mediation from beginning to end can be less than the combined retainer fees would be if the parties hired lawyers to handle the divorce.

Typical divorce costs can run two to ten times higher than the mediation cost. Also, keep in mind that "cost" not only means dollars spent but the emotional cost to the parties and their children who go through litigated divorces. This emotional cost is greatly reduced by the mediation process.

Will our Agreement be Enforceable?

Once an agreement has been signed, that agreement is enforceable, however usually a judgment based on the agreement is prepared and filed with the court, and is just as enforceable as any other divorce judgment.

Should I See a Lawyer During Mediation?

Mediation is not a substitute for the services of a qualified attorney. Both parties are encouraged to obtain independent legal advice during the mediation process, and to have their lawyer review the agreement before it is signed. Even when the mediator is a lawyer, he/she cannot give either party legal advice.

What if My Case is Too Complicated for Mediation?

No case is too complicated to be settled using mediation. Frequently the parties in mediation consult with outside experts such as accountants, appraisers, financial planners and attorneys during the process.

What Does it Mean When You Say Mediation is Confidential?

State law says that no one, not even the two parties, can use what is said in mediation as evidence in court. What happens in mediation is as confidential as settlement negotiations between parties and their lawyers.

What if We Can't Agree on All Issues?

It is fairly rare to agree on all but one or two issues, but even if that is the case mediation is seldom wasted. An agreement can be prepared on all settled issues, and the parties can either litigate the remaining issues or take further time to think about them and come back to mediation.

We Don't Get Along Well - How Can We Possibly Mediate?

Although many mediating couples are amicable and work well in mediation, there are also many couples who are very emotional about the divorce and don't think they can negotiate face to face. Part of every qualified mediator's training is in assisting couples who have high emotions but who still would like to work things out peacefully. People do calm down and become effective mediation participants when they see that the process can work without adding to the high emotional and financial cost of divorce.

My Spouse is Very Powerful - How Can I Hope to Be Successful in Mediation?

The mediator will not allow one party to overpower the other in mediation. If one of the parties is unable to be effective during this process, the mediator will stop the mediation. However, many persons who considered themselves to be the "weaker" of the two spouses have been quite effective in mediation. As an unsophisticated spouse of a very powerful business executive once said, "I have the power to say no, and my spouse better listen or we'll wind up in court."