Divorce Mediation Basics

An overview of using mediation to resolve your divorce.

Mediation is one of the most frequently used methods of negotiating a divorce settlement. In divorce mediation, you and your spouse—or, in some cases, the two of you and your respective lawyers—hire a neutral third party, called a mediator, to meet with you in an effort to discuss and resolve the issues in your divorce. The mediator doesn’t make decisions for you, but serves as a facilitator to help you and your spouse figure out what’s best.

Anyone going through a divorce should consider mediation, which can work for almost all couples and has a long list of benefits.

Mediation is much less expensive than a court trial or a series of hearings.
Most mediations end in a settlement of all of the issues in your divorce.
Mediation is confidential, with no public record of what goes on in your sessions.
Mediation allows you to arrive at a resolution based on your own ideas of what is fair in your situation, rather than having a solution imposed upon you based on rigid and impersonal legal principles.
You can still have a lawyer give you legal advice if you wish.
You and your spouse — not the court — can control the process.
The mediation process can improve communication between you and your spouse, helping you avoid future conflicts.

While mediation is absolutely worth trying for most couples, not every couple belongs in mediation. For example, if there is domestic violence in your relationship, you should consider carefully before you agree to participate—but don’t it out of hand. Some people who have experienced abuse in their marriages find it empowering to meet on the level playing field of a mediation session; others find there’s too great a chance of replicating the dynamics of the marriage and choose to have a lawyer do their negotiating for them. Also, because the mediator can’t order either of you to do anything, a person who wants to delay the proceedings or avoid paying support can abuse the process by agreeing to mediation and then stalling the process. If you need decisions about support or other issues made early in your divorce, you may need to go to court. This doesn’t mean you won’t be able to use mediation at a later point to resolve the rest of the issues in your divorce, though. (To learn more about who can benefit from divorce mediation, read Nolo’s article Will Divorce Mediation Work For You?)

All that’s required to make a divorce mediation successful is for both people to show up willing to negotiate and open to compromise. Don’t reject mediation just because you and your spouse see a particular issue very differently—in other words, don’t give up before you’ve begun. Mediation is a powerful process and many cases that seem impossible to resolve at the beginning end up in a settlement if everyone is committed to the process.

The Mediation Process

Although each mediator has his or her own approach, most mediations tend to move along the same lines. You’ll usually start with a phone call in which you’ll speak with the mediator or an assistant and provide background information about your marriage, your family, and what the issues are. Some mediators want a great deal of basic information before the mediation begins, while others prefer to gather all of the information in the first meeting when everyone is present.

You’ll then attend the first meeting—usually held in a conference room or comfortable office—where the mediator will explain what you can expect from the process. For example, the mediator may tell you that everyone will be in the same room for the entire mediation or that you’ll meet in separate sessions so that the mediator can get your views or positions in private. The mediator may also take care of some housekeeping business—for example, ask you to sign an agreement that says that you’ll keep what’s said in the mediation confidential and that you understand that the mediator can’t disclose any of what goes on there if there’s a court proceeding later on. At the same time, the mediator will try to make you feel comfortable by establishing a rapport with both you and your spouse.

A Note About the Collaborative Divorce Process

Collaborative divorce (also called collaborative law or collaborative practice) is similar to mediation in that spouses are attempting to avoid a court battle. However, the process is quite different from traditional mediation.

With collaborative law, you and your spouse each hire specially-trained collaborative attorneys who advise and assist you in resolving your divorce-related issues and reaching a settlement agreement. You will meet separately with your own attorney and then the four of you meet together on a regular basis, in “four-way” meetings. A collaborative divorce usually involves other professionals, such as child custody specialists or neutral accountants, who are committed to helping you and your spouse settle your case without litigation. Ordinarily, both spouses and their attorneys sign a “no court” agreement that requires the attorneys to withdraw from the case if a settlement is not reached and the case goes to court.

Eventually, you will have to have some contact with a court to get legally divorced, but you can keep that contact brief and manageable. Once you reach agreement on all the issues, you’ll make the legal part of the divorce a simple, uncontested procedure that doesn’t require a trial or contentious court hearings.

The downside of collaborative divorce is that if you and your spouse cannot reach agreement or the negotiations fail, then you will have to start your divorce process over from scratch with new attorneys, and this can be very expensive after you’ve already invested in the collaborative process.

For more information on collaborative divorce, and for help finding a collaborative lawyer in your area, see the International Academy of Collaborative Professionals, at www.collaborativepractice.com.

Lawyers in Divorce Mediation

If you are represented by an attorney, the question will arise whether your attorney should attend the divorce mediation with you. This is something you’ll work out with the mediator, your attorney, your spouse, and your spouse’s attorney. Very often, family law mediation sessions involve just the divorcing spouses and the mediator. This keeps costs down and ensures that you and your spouse do the talking and make the decisions (lawyers have a tendency to take over when they are present).

Unless your lawyer thinks it’s important that you be represented, try the first session without your attorney. (If your spouse is insisting on having an attorney present, you’ll want to do the same.) If you’re not represented, but you’ve asked a lawyer to be your consulting attorney just for purposes of mediation, then you’ll likely attend the first mediation session on your own. Either way, if you go by yourself and then you find that you can’t state your position clearly or stand up for yourself alone, then consider bringing your lawyer to later sessions.

Getting Started

After the mediator has gone over the basics, you’ll get a chance to make a short statement about your situation, as will your spouse. After you’ve each had a chance to speak, the mediator is likely to ask some questions to clarify or get more information. The mediator may also reflect back what you’ve said, to be sure that both the mediator and your spouse have understood all of your points. The same will go for your spouse.

The next step will be to assess where you and your spouse agree and where you need some work to get to agreement. Once you have a sense of what needs to be accomplished, you, your spouse, and the mediator will plan how you’re going to accomplish it. It’s very likely that you will need to gather more information, especially if you’re dealing with property issues as well as child custody questions. (For example, if you don’t know the value of your house, you can’t have an intelligent discussion about a buyout.) The mediator will help you figure out what information you need and ask each of you to commit to bringing certain things for the next session.

Negotiating an Agreement

When negotiations begin, the mediator may suggest that you deal with simpler issues first. Answering the easier questions builds trust and encourages compromise when it comes to the more difficult issues.

Negotiating agreements isn’t always linear. You may start at what feels like the end, and you may find yourself needing to gather more information at various points. The mediator will help you to stay on track and brainstorm options, will encourage you and your spouse to express your opinions, positions, and what’s important to you, and will help you listen to each other in ways that will make a resolution more likely. (You may be able to use some of these communication tools in your ongoing parenting relationship.)

The two most important things you can do to make your mediation successful are:

to be open to compromise, and
to really listen and try to understand your spouse’s point of view.

Understanding your spouse’s position doesn’t mean you have to agree with it. But it’s possible that once you do understand what your spouse’s real concerns are, you will have new ideas about how to resolve things. Your efforts at understanding will encourage your spouse to do the same.

Being open to compromise means that you aren’t attached to one particular solution—you can’t just put your idea on the table and expect your spouse to accept it. A compromise that works is one that takes both of your interests into account. Consider the possibility that your spouse might have valid ideas as well, and take the time to think them through instead of rejecting them out of hand.

Completing the Agreement

Once your negotiations are finished and you have found a solution, either the mediator or one of your attorneys will write an agreement and, in many cases, a parenting schedule or parenting plan. These documents will be incorporated with the rest of your divorce paperwork and become part of your divorce judgment, which means that a court could enforce them if one of you doesn’t do what the agreements say you’ll do.

Finding a Mediator

Your attorney will have referrals to local mediators. If you’re representing yourself, you’ll have to locate a divorce mediator on your own. If you can, try to find recommendations from someone whose judgment you trust. You can ask lawyers, financial advisers, therapists, or spiritual advisers for referrals, as well as friends who’ve been through a divorce. If you can’t find direct, personal referrals, here are some other ideas:

Check the Internet: www.mediate.com and www.divorcenet.com have links to mediator referrals, as do many other divorce websites and lawyer directories, including Nolo’s directory at www.nolo.com.
Contact national mediation or family law organizations, including the Association for Conflict Resolution (www.acrnet.org), the Association of Family and Conciliation Courts (www.afccnet.org), and the American Arbitration Association (www.adr.org).
Call your local community mediation center and ask for a recommendation — or find out whether your case might be appropriate for low-cost community mediation.
Call your local bar association or a local organization of therapists or financial professionals.
Call your local legal aid office.

You should only work with a mediator who has experience in divorce cases and ideally one who is an experienced family law attorney. Once you have some names, contact the mediators and ask whatever questions you need to until you’re fairly confident that you can work with this mediator.

There’s much more about divorce mediation and how to find and choose a mediator in Divorce Without Court: A Guide to Mediation and Collaborative Divorce, by Katherine E. Stoner (Nolo)