Mediation in Divorce Cases

What is Mediation?

"Mediation" means a process in which the parties appear before an impartial third party who has no authority to adjudicate the dispute but who, through the application of standard mediation techniques generally accepted within the professional mediation community, assists the parties in identifying the issues, and then interests, exploring settlement alternatives, and fashioning the basis of an agreement.

"Family mediation" means the mediation of disputes in actions for divorce, annulment, establishment of paternity, child custody or visitation, or child or spousal support.

Mediation programs can be very beneficial to people who are divorcing as well as to those who have long been divorced but who find themselves in a dispute in their post-divorce relationship. Not only can it save money but it promotes positive dispute resolution rather than adversarial procedures. That being so, it is well worth investigating by any couple facing divorce, a child custody fight, a visitation dispute or other interpersonal conflict.

Mediation is a process that may help you resolve your case so you can have an uncontested divorce. Mediation is particularly useful in situations involving children, since it is in the interests of the children that their parents "get along" even if they will no longer live together as husband and wife. In many states all cases that involve contested custody or visitation matters are referred to mandatory mediation, provided the parties are represented by an attorney and there is no allegation of domestic abuse.

Mediation attempts to change disputes from "win-lose" to "win-win." Mediation is a non-adversarial process of helping people come to agreement on issues like parenting arrangements, support of children and spouses and division of real and personal property. Mediation occurs when a neutral third-party, who has training in dispute resolution, assists you and your spouse and helps you resolve the issues that are causing conflict and to make cooperative, informed decisions.

Mediation can be used to resolve the entire range of family disputes either before a divorce takes place in order to consummate a marital settlement agreement, as well as after the divorce to resolve continuing disputes that might arise under a marital settlement agreement.

There are professional mediators who earn their living by providing divorcing couples mediation services on all issues. These professionals can be invaluable in helping couples resolve property and support issues but also will assist with custody and visitation disputes. Divorce attorneys and family counselors can often refer families to professional family law mediators. Psychologists, family counselors and social workers may also offer such services.

In many states the court shall refer the parents or parties with a legitimate interest to a dispute resolution evaluation session to be conducted at no cost to the parties. In assessing the appropriateness of a referral the court shall ascertain whether there is a history of family abuse.

Mediation should not be used when there has been evidence of domestic violence or abuse or there is a great difference in power between the parties. For the mediation process to work there must be some degree of trust between the parties.

It is advisable to have an attorney in a private mediation, but it is not required. In a court-referred mediation, each party must be represented by an attorney. Parties will be advised by the mediator to seek advice from their attorneys and it is recommended that an attorney review the final settlement agreement.

Mediation is never binding by itself. Only a properly executed settlement agreement which is the outcome of the mediation is binding.

What are the advantages of mediation over litigation? Studies show that families that mediate their differences have a substantially better after-divorce relationship than families that litigate their differences.

Mediators use a variety of negotiating techniques to help spouses reach a mutually agreeable solution to their differences. The final decisions are the spouses', not the mediator's, because both have had a say in how to deal with the issues that are important to them. In divorce mediation, the couple controls how and when decisions get made, rather than attorneys and judges.

Mediation is far less expensive. It can save a divorcing couple a lot of money. As you will see from the brief description of contested divorces below, adversarial trials get very expensive, what with the cost of attorneys, expert witnesses and time taken away from more positive pursuits. If you can successfully resolve all of the issues in your case, ranging from property division, to support, to custody, you will be many dollars ahead.

Mediation, is not free. Hourly rates for services that charge are often based on a sliding scale, ranging from $40 to $150. By comparison, fees for divorce lawyers range from $100 per hour to more than $200 per hour for each spouse, depending on the section of the country in which you live. [During the experimental stage of this program there is no charge for the cost of mediation or for administrative costs for parties participating in this program]. Mediation is faster. In a traditional court setting, trials can stretch for many months or even into years.

One of the advantages of mediation is that it is confidential. The emotional and perhaps embarrassing issues that are raised in divorce and child custody difficulties will be kept private, as opposed to a trial where all of the proceedings are part of the public record. They are also confidential, meaning that the process doesn't become part of the public record as does a court tried divorce case. This is especially important when the mediation concerns children. The adversarial nature of a divorce trial can severely strain the ability of parents to communicate with each other and their children.

Dealing with custody, visitation and child support in mediation can often short circuit much of the bitterness and support positive family interaction. This can really help the children who usually want a close bond with both their mother and father.

If you don't reach agreement, you can still go to court. You do not give up your right to litigate your dispute, although it will end up costing you thousands more in legal fees, and hours of frustration as you lose control of your dispute by giving it back to the judicial system. What has occurred in mediation is confidential and is not admissible in court or through discovery, so you have the luxury of starting fresh as if the mediation had never taken place. In a court-ordered mediation, the case will return to the court for a decision by the master or judge if the two parties cannot come to an agreement.