What Is Mediation in Divorce?

How Does Divorce Mediation Work?

Divorce mediation is when a couple seeking a divorce hires a third-party professional—known as a mediator—to help them make decisions about various aspects of the divorce. Mediation is an alternative to going to court. It often takes less time and is cheaper than litigation.

Typically, mediation covers a wide range of disputes, according to attorney John Shea, who spoke with The Balance by email. Dispute areas include:

• Custody
• Parenting schedules

Division of assets (real estate, personal property, etc.)

• Child support
• Alimony
• Retirement benefits
• Health insurance
• Life insurance
  

You may even be able to resolve your issues in your first session with the mediator. Once you’ve reached your resolution, it takes around two weeks for your mediator to draft a settlement agreement and send it to you and your spouse. This phase of the mediation process is known as “pre-suit mediation”—you’re trying to work things out before going to trial. Once you and your spouse have the agreement, you’ll meet for a final mediation session to sign the agreement and related court documents.

How Mediators Can Help

The centerpiece of divorce mediation is the mediator—trained professionals who remain neutral when discussing the problems that need to be solved. 

Divorce attorney and mediator Jenifer Foley of New York City-based firm Alter, Wolff, and Foley LLP, told The Balance via email that mediators help facilitate the conversation, asking lots of clarifying questions. The goal? To assure that each party has an opportunity to speak and be heard—and to confirm that what they are hearing is correct.

Foley said her main hope as a mediator is to help spouses communicate their demands and the reasons behind those demands so the couple can find a mutual understanding and resolution. This dispels the common misconception for divorcing couples in this process that the mediator will “decide” what happens.

Your mediator is not responsible for the final decisions between you and your spouse. Instead, they act as a facilitator who requests concessions from both sides to reach a solution that suits your family’s needs.

Divorce mediation is an alternative to settling a divorce in court. It provides you and your partner the chance to settle important issues on your own timeline with a mutual agreement on what happens after the dissolution of your marriage.

Example of Divorce Mediation

Let’s say two people have been married for 12 years and they have two kids. Before deciding to get a divorce, they tried counseling and other interventions to save their marriage.

However, nothing worked, and so divorce is their next option. Among custody issues and splitting up assets, the biggest disagreement the first spouse has with their partner is what to do with a painting they both want. The second spouse wants to sell the artwork, but the first wants to keep it.

“Through mediation, [a spouse] has an opportunity to explain that they want the artwork because it has meaning to them (maybe it was purchased on a trip they took that was special to them), then we can brainstorm creative ideas about how to resolve the issue,” Foley said. “Maybe the [one spouse] keeps the artwork, agrees never to sell it, and promises to leave it in their will to the parties’ child.”

Based on insight from the mediator, the couple decides which spouse should get the painting. The couple resolves their other issues involved in the divorce, the mediator drafts a settlement agreement, and the spouses meet one last time to sign the agreement and a few other documents. 

Cost of Mediation

Most mediations cost much less than a litigated divorce. The average cost of a litigated divorce (one involving a court battle) averages $20,400, while a mediated divorce costs an average of  $3,000 to $8,000.

How To Get Started With Mediation in Your Divorce

Starting divorce mediation begins with both spouses agreeing to mediation and finding a reliable mediator. You could ask family and friends for a referral to someone they’ve worked with, or look into court-based mediator programs.

After finding a mediator, Foley said the process typically follows certain steps:

1. Discuss the process
2. Set an agenda—discuss and list the various issues that must be addressed
3. Follow the process developed together
4. End with an agreement drafted by the mediator or one of the two parties’ attorneys

Divorce mediation doesn’t require an attorney to be present. However, it’s typically recommended that both parties have an attorney present during mediation. They can help you strategize, understand what’s at stake, and review any agreements you reach.

Pros and Cons of Divorce Mediation

Pros Explained

• Less expensive and usually quicker than other divorce processes: Generally, mediation takes less time and money than litigation.
• Final decisions are made by you and your spouse: Instead of a stranger deciding the fate of your family in a courtroom, you’re able to have more control over the outcome of your divorce. Mediators examine the facts, concerns, and demands of each party to come up with solutions that, in theory, work for everyone. 
• More privacy: Mediation permits a level of privacy that you won’t find with a public court trial. 
• Typically good for a nonadversarial divorce: If you want to avoid a long, drawn-out divorce, mediation could be a better fit for facilitating communication between you and your spouse and resolving things quickly. 

Cons Explained

• May not be the best for abuse and addiction situations: Mediation might not be the best option for sensitive situations where there is domestic or child abuse, child neglect, or addictions to drugs or alcohol. The courtroom may be a better, safer place to handle these situations.

Could be more complex when a business is involved: If a business is tied up in the divorce then it could require hiring additional experts to fully uncover all of the assets. This could include a forensic accountant, CPA, or certified divorce financial analyst (CDFA). 

Alternatives to Divorce Mediation

If you decide that mediation isn’t the right option for your divorce, there are other alternatives available:

• Arbitration: You and your spouse can hire a professional who will make the final decision on the details of your divorce. Generally speaking, you cannot appeal an arbitrator’s decision.
• Early neutral evaluation: This is a pretrial meeting where an evaluator assesses your divorce proceedings. An early neutral evaluation could lead to a settlement. 
• Collaborative divorce: Both spouses can hire attorneys and specialists, then sit down and discuss the details of the divorce. The goal is to reach a settlement without heading to trial.

Each of these is considered an alternative dispute resolution method that divorcing couples could use to reach a mutual agreement.

Frequently Asked Questions (FAQs)