Prior to the first session with the divorce mediator, each spouse should think about his or her expectations for the final divorce settlement. They should consider all aspects of the divorce, including property, bank accounts, debts, retirement accounts, and child custody and visitation and make a list of what they would like to see at the end of the divorce mediation.
Issues to Consider Before Starting Divorce Mediation
House
Mortgage
Furniture
Computers and electronics
Art/antiques
Cars
Boats
Child support
Alimony
College funds
Retirement accounts
Bank accounts
Stocks and bonds
Back taxes
Business partnerships/holdings
Credit cards
Child custody
Visitation/co-parenting plans
Children’s educational and medical expenses
Before going into the first divorce mediation session, both parties should mark on their lists the issues on which they are willing to negotiate, and on which points they do not feel comfortable conceding.
Each party should try to also try to anticipate any objections that the spouse might bring up during the divorce mediation and be prepared to address those concerns.
During the Divorce Mediation Session
Couples should not expect to resolve all of their issues during the first divorce mediation session, particularly if one spouse is contesting the divorce, or if the parties have significant assets, debts, or minor children.
Even though divorce mediation can bring out strong emotions, all parties should try to remain calm, civil, and make only reasonable requests. If, at any time either spouse feels attacked or overwhelmed, or he or she should ask the mediator for a break. Sometimes it may be beneficial to end a session early and resume when spouses feel composed and ready to confront the issues.
During a divorce mediation session, it is important that both parties understand the issues being discussed. Because the divorcing couple will be dealing with complex issues involving finances, real estate, and their legal rights, both parties should feel free to ask the mediator questions at any point during the session.
Divorce mediation allows couples to resolve their legal disputes outside of court. Any issue that is considered at a divorce hearing may be resolved in mediation.
Parties should not feel like they have to offer immediate responses if they are unsure how they want to respond to an offer. During divorce mediation, it is acceptable to set aside an issue and come back to it later if either party needs time to think about the implications of that choice.
Each spouse should offer alternative solutions when they are unable to accept the other party’s offer. Successful divorce mediation relies on both parties trying to reach mutual agreement. It is difficult to do this if either spouse is unwilling to make counteroffers during the mediation session.
Final Written Agreement
Before signing any agreements, both parties should look the documents over carefully and ask the mediator to revise or clarify any points that are not worded as they were discussed during the mediation session. If the spouses have retained divorce lawyers, it is advisable for the attorneys to look over the final product to ensure they are fair and legally sufficient.
Voluntary Divorce Mediation
Divorce mediations are facilitated by certified, licensed mediators. Most states require that mediators also be licensed attorneys, which ensures that the agreements reached at the end of a session are in compliance with the law. In the interest of neutrality, spouses generally split the mediation fees.
Benefits of Divorce Mediation
Mediation is less costly than litigating contested issues. Because there is no litigation, couples avoid paying attorneys’ fees related to trial preparation and discovery.
Divorce mediation is non-adversarial and encourages couples to communicate openly about their financial and emotional needs. This makes the process less stressful for all parties and ensures that the final agreement is both legally appropriate and practical.
Mediation speeds up the divorce process. Couples will not have to wait for court hearing dates or rulings from a judge when they settle their disputes out of court.
Divorce mediation is easier on minor children. A neutral mediator can carefully assess the child’s needs and each parent’s strengths, crafting an agreement that best meets the children’s (and parents’) physical and emotional needs.
Even though divorce mediation is outside of the formal legal system, neither party is barred from retaining an attorney to help them reach an agreement. During mediation, neither party should feel as though they are being treated unfairly.
When to Avoid Out-of-Court Agreements
Although most court systems prefer that couples use mediation prior to bringing a divorce case to trial, several circumstances do not lend themselves to an equitable mediation session.
In situations where a spouse committed abuse against the spouse or child, the unhealthy dynamic present in the relationship may prevent the couple from being able to negotiate a fair agreement outside of court. During divorce mediation, neither party should feel pressured or intimidated.
Mediation may also be inappropriate if one or both spouses have emotional problems related to the divorce. Successful divorce mediation relies on both parties being able to assess their needs objectively; depression, anxiety, and severe emotional distress can inhibit this.
Considerations Before Hiring a Mediator
Couples should keep in mind that they will still need to go to court to finalize their divorce even if they resolve all property, financial, and child custody issues in mediation. Although the court may ask for a copy of the divorce mediation agreement, the court will still need both spouses to fill out financial affidavits to enter orders for child support, alimony, and distribution of retirement account funds.
Although couples who attend mediation may not be able to resolve all of their issues out of court, divorcing parties should assess the benefits of out-of-court negotiations before pursuing litigation. Even in contested and inimical divorces, many spouses find that they are able to save time, and stress, by retaining a third-party divorce mediator.
