A Complete Guide to How Divorce Mediation Works
Divorce mediation is a viable option for couples who wish to obtain a peaceful, amicable separation or divorce without hiring their own individual opposing attorneys.
As architects of your own agreement, spouses fairly and efficiently resolve all their legal and financial obligations towards one another as well as all parenting matters involving the welfare and best interests of your children.
These matters include division of marital property, alimony and spousal support, child support and custody/children's welfare.
Through the assistance and guidance of an experienced divorce mediator, spouses are empowered to make all of their own decisions that form the basis of their marital settlement agreement--not the courts.
The divorce mediation process is often suggested as an alternative to hiring opposing lawyers to represent you and your spouse.
A litigated process has been known to be long, painful and costly process.
Research has shed light on devastating financial and emotional consequences on the family unit with long, court-contested divorce process.
Mediation helps to alleviate impact of divorce on the family.
Watch this webinar for an in-depth understanding of how divorce mediation works.
It's helpful to understand what is actually discussed in the mediation room.
Divorce mediation takes place in a room with just you, your spouse and the divorce mediator. Rarely are lawyers or other family members in the room. It is a private negotiation.
You are not expected to have all or any issues worked out in advance - that's why you are in mediation and working with a highly-trained professional.
Sometimes mediation is part of a court-contested process, and you will work out just parenting, for example. However, it doesn't have to be. You and your spouse can work out your entire case outside of court with a divorce mediator.
Mediators who are attorneys are usually able to draft an agreement to make your settlement legally-binding.
Expect to feel emotional, but also expect to treat the mediation purely as a business transaction. Emotions like anger and guilt are not permitted to drive the process.
Some sessions are only an hour, but usually to get resolution, your session could last 2-3 hours.
During parenting mediation, you will work out a comprehensive, yet fluid parenting plan that addresses both the current needs and best interests of the children as well as other family dynamics, but that also stands the test of time as the children's needs change over time.
In financial mediation, full disclosure of all financial documents is required before the sessions begin so that all cards are on the table for discussion.
Spouses also review their post-separation budgets to determine what their living expenses.
The divorce mediator is an entirely neutral party who does not take sides, but rather is concerned with facilitating a negotiation between both spouses
An experienced divorce mediator will ensure that a fair, reasonable and balanced agreement is achieved between separating or divorcing couples in a very efficient, kind and affordable manner.
A divorce mediator also assists couples in working past any obstacles that may be impeding their progress towards a mutually fair settlement and may make sound and prudent suggestions designed to lead them towards making the most sensible decisions for their family’s future.
An attorney-mediator initially provides parties with an overview of the relevant law and legal concepts so that they may apply it to the specific facts and circumstances of their case. Couples are informed of all their basic legal rights and obligations under the law so that they can make informed decisions for their agreement.
Attorney-mediators specifically do not provide legal advice or representation but are instead educators and facilitators of the process. Ultimately, spouses are encouraged to have their resulting agreement reviewed by independent outside counsel before signing it.
This will depend on how complicated your case and the number of sessions needed. On average the mediation process can take between 3-6 months, due to the need to gather documents, get appraisals or other financial needs, and how fast or slow you both want to go.
You can expect anywhere between 1 to 5 sessions, that last from 1-4 hours each.
Some spouses prefer to delay their divorce for health insurance reasons, when it's best for the children, going back to work, etc.
Others have been separated for some time, and have adjusted to their new life, and therefore mediation moves more quickly.
Also, for spouses seeking a divorce, there is usually, but not always, an additional mandatory waiting period (a 90-day wait period applies in Pennsylvania).
This starts after they have signed their legal agreement and filed for divorce.
Some states have required mediation as part of the court-contested process.
In court-ordered mediation, spouses are often represented by lawyers who prepare them to go to mediation.
In private mediation, all issues can be worked out with a divorce mediator, and without ever having to set foot in court or hire opposing lawyers.
In PA, for example, court-ordered mediation relates to mandatory custody mediation only, This means that spouses in litigation are required to try and see if their custody issues can be resolved before their case gets listed before the divorce judge for initial listing and trial.
Financial issues, such as alimony or child support, are not part of the court-ordered mediation.
Not all mediators are trained to offer legal guidance or ethically allowed to calculate child support. Non-attorney mediators can be helpful in working out a plan for parenting in two separate households, especially those with a background in child development or therapy.
If you are looking for calculations or helping understanding legal guidelines and ramifications, make sure to use an attorney-mediator.
It depends on the type of mediator you choose. You could hire an attorney, financial planner, therapist or clergy as your divorce mediator and costs generally vary widely from $150-$300/hr, which usually adds up to $3,500 to $15,000 for the most complex cases.
More about costs of mediation >
Remember, divorce mediation costs a small fraction of what it would otherwise cost to have your matter litigated in court with private, opposing attorneys who often charge a retainer of $2,500-$15,000 each before beginning any work on your case, which oftentimes is not refundable.
Legally speaking, “It is not that one gets the house versus the other, but what are we doing with the house, what is the most sensible financial plan around the house in the divorce,” says Cris Pastore, attorney-mediator.
Here's an initial checklist of documents you will need for divorce mediation.
Perhaps you've come to the realization that divorce mediation is the way to go for you and your spouse, but how do you choose a divorce mediator?
After all, not all divorce mediators are created equal.
Also, a divorce mediator is not merely a referee.
The best divorce mediators usually have extensive experience with handling more sophisticated marital estates with complex financial issues.
For example, they will be able to carefully analyze the complexities of investment-based assets, employee stock incentive awards, two-household budget projections and home and business valuations.
They can also identify any potential tax issues and pitfalls that may result from your divorce settlement.
If parenting and custody issues are paramount, look for a divorce mediation service that uses a parenting mediator with a therapy background.
This type of mediator, often times, is much better suited than an attorney to understand complex family dynamics and how they impact children.
As such, they are often more likely to suggest parenting and custody solutions that are most healthy for the family unit.
A good divorce mediator is like having a strong, yet neutral witness in each of your corners who is looking out for each of your best interests, as well as the entire family.
A divorce mediator should encourage you to have your agreement reviewed by a private divorce attorney (one who is well-oriented to the mediation process).
This allows you to feel like you have an additional layer of protection prior to signing your agreement.
validate your opinions regarding what you each believe is fair. They would engage you both in meaningful discussion. An attorney-mediator is qualified to point out any matters that a court would view as unfair.
A good divorce mediator will use tech to collaborate, like electronic calendars, and secure document sharing, and video email for maximum efficiency and optimal communication.
This question is completely dependent on your individual situation. Consider whether you and your spouse are in a place where mediation would be successful.
There are many myths swirling around about why divorcee mediation would not be a smart move.
If you can both put a check next to each, then mediation would be your best starting point.
Put a check next to each item you believe that you both can agree upon.
▢ Your marriage is really over. You both agree there is no chance to save your marriage and wish to separate and/or divorce.
▢ You both want to retain control over your own decisions. You want to decide what is fair and reasonable for your settlement and your children’s best interests-not the courts. You don’t want to endure the pain and uncertainty of litigation with an overworked court system.
▢ You both want to do what’s best for your children. You both want to protect your children from the potentially devastating emotional impact that separation and divorce can have on them.
▢ You both want to be informed. You want legal/parenting/financial guidance professional to assist you in making the most sensible decisions for your marital settlement agreement.
▢ You do not want to risk losing up to 75% of your net worth by litigating in court and are seeking a more cost-effective option to start your new life on a healthier financial footing.
▢ You don’t want to hurt each other emotionally and financially. You are worried about a 2-4 year battle, the exhausting litigation proceedings, and the emotional toll this will take on you and your children.
Let's look at some situations where you might be considering whether a mediator or lawyer would be best.
Divorce mediation involves the amicable resolution of a separation or divorce where an entirely neutral divorce mediator assists parties in achieving a wholly fair and workable agreement, including negotiating child custody, in which all of their rights and interests are discussed and fully protected.
As the architects of their own agreement, mediating parties retain exclusive control over all decisions that are made.
In litigation, by contrast, the fate of their futures lies in the hands of judges, divorce lawyers and a backlogged court system which often does not have the time to fully analyze and consider those specific facts and circumstances in their matter that are most important to them.
Spouses rely on divorce lawyers to make their case. There are filings and court hearings that take place, and often require a great deal more time and expense.
Divorce mediation is focused on peace-making, common ground and agreement, whereas litigation is about win-lose.
YES, DEFINITELY. Assuming that spouses obtained a legally binding marital settlement agreement in mediation, there may be times that one ex-spouse may wish to modify portions of the agreement, or perhaps one ex-spouse has violated the terms of the agreement, causing the other to file an action in court for contempt.
Post-divorce mediation can be beneficial in these instances as well since it can allow the parties to resolve their differences amicably without having to resort to the courts for relief. In fact, parties who mediated their divorce settlement have a distinct advantage in these situations since they already succeeded in mediation and they know what it takes to do it again should a dispute arise after the divorce. This is precisely why
YES. It is never too late to mediate. Sadly, many couples have discovered the option of divorce mediation only after already being firmly entrenched for years in the throes of an adversarial, litigated divorce. Unfortunately, many times it becomes very difficult for them to extricate themselves from this situation due to costly retainer agreements and a win-lose mindset that has already been ingrained. However, with proper support, it can be done.
Private divorce lawyers perform a very valuable service to the clients they represent. They are trained to zealously represent their clients’ interests to obtain for them as much as they can in a divorce matter. In the end, this often leaves the other spouse in an unrealistic and untenable financial position to the extent that they are not able to meet their financial obligations.
Sadly, when this happens, it will often result in further proceedings in court, such as contempt petitions, after the divorce is over creating a vicious cycle of costly litigation that seems to have no end. The fact remains that although private divorce lawyers can suggest what their clients should receive under the law, there are no guarantees.
Going to court is always a “roll of the dice” with a variety of possible outcomes, and some of which either one or both spouses were never expecting.
Divorce mediation allows couples to control the decisions they agree are best for their family while never agreeing to anything that they will not be able to live up to. It allows for a wholly fair and comprehensive agreement designed to keep spouses out of court and that will stand the test of time.
It's possible, however, in order for divorce mediation to work successfully, there must generally be a baseline level of trust between two spouses. Central to this level of trust is the requirement that each party must voluntarily disclose all of their assets, debts and other financial information to their mediator at the outset of the mediation. If any one party is unwilling to do this, it will undermine the progress of the divorce mediation. If lack of trust is a major obstacle, then consider a collaborative divorce, where each spouse hires an attorney, but both agree to stay out of court.
YES. Sometimes a spouse will come to divorce mediation feeling hurt, wounded, betrayed or deceived by their spouse. These feelings are normal and understandable. However, this does not mean that they cannot successfully mediate.
The good news is that as you move through the mediation program and emerge from the divorce, these feelings do eventually subside as your focus will begin to shift towards the preservation of their family's future best interests and away from the events and circumstances that led to the divorce.
In fact, with patience and time, you have just as strong possibility of emerging feeling even stronger, more dignified and self-assured than you ever were before.
ABSOLUTELY, if you choose the right divorce mediator. In fact, your rights will be just as protected in divorce mediation, if not more, than they would be in litigation. A neutral mediator does not take sides, but rather is concerned with protecting everyone’s rights and best interests.
The mediator will ensure that both spouses have been heard and will point out anything that is unbalanced in the meetings, or that the law would view as unfair, compelling spouses in the end to reach a very even and well-balanced settlement agreement.
If you are concerned about legal rights, hire an attorney-mediator who is qualified to offer legal guidance and education.
Download Smart and Savvy Guide to Hiring a Divorce Mediator >
Divorce mediation is a negotiation of terms around finances and children, not a counselling session. Therefore, you should tread with caution and make sure you are in a decent place both spiritually and emotionally before this crucial step is taken.
The decision to separate and/or divorce is not to be taken lightly and is likely to be the most important decision you will ever make in your lifetime.
Fortunately, at Main Line Family Law Center, we have a highly vetted Divorce Support Network of professionals who to help you sort out some of your fears and deepest concerns and identify any barriers or blockages that are inhibiting you from moving forward in a positive direction towards a healthier and more productive future life.
Visit Divorce Support Network >
Download Emotional Rollercoaster: Guide to Preparing for an Emotional Divorce >
BE KIND AND PATIENT. Almost any separation or divorce matter can be mediated, no matter the circumstances. There are times, however, where a spouse may be initially resistant to the idea, usually because they have already been influenced by well-intentioned family or friends who are uninformed about the divorce laws and how they would apply to that spouse's marriage.
However, once spouses are informed about how divorce mediation works, what they can achieve in this process, and how their family can greatly benefit from it for years to come, their usual reaction is that they wished they had heard about the option sooner.
If you push too much, it could backfire. Therefore, you are encouraged to contact Main Line Family Law Center and kindly suggest that your spouse do the same. You and your spouse will learn more about divorce mediation and all the available options, which will go a long way towards opening up their eyes to a much better way to obtain a separation or divorce.
Download Spouse Communication Toolkit >
If you have therapist, contact them for a recommendation. Otherwise, most mediators have an online presence, and most are in practice for themselves.
Mediation requires that you are able to advocate for yourself. That means it is critical that you build in time to get educated and study the financial picture, especially year-1 post divorce. Create a picture of your life post-divorce, set realistic goals, and put actual numbers next to those goals. Your role is to speak up and states these goals while the mediator will help you find a creative way to achieve this, and better understand what is realistic.
To prepare for divorce mediation, you'll want to 1) get in a peaceful negotiation mindset; 2) gather the required financial documents and study your financial picture; and 3) create goals and outcomes for yourself that you wish to achieve. For parenting mediation, you'll want to take time to reflect on your children's needs and interests, and make a list. This will help the mediator to do their job and you will better be able to trust the process with clarity around your goals and wishes for the future.
Divorcing a narcissist, no matter which gender or process, is going to take the utmost patience and strength to get to the finish line. The characteristics of a narcissist are equated with charm, self-righteousness, and attention-seeking behaviors - and the true narcissist is not likely to admit any of this.
Mediation is always a possibility, especially when you both are in agreement you want the divorce. However, you must trust financials are being disclosed, substance abuse is under control as well. You would do best to have a structured, facilitated mediation process and a mediator with prior success with dealing with narcissistic behavior.
Additional supports, such as a therapist or divorce coach, may be required outside the mediation room to help you best prepare for the negotiations.
If you and your spouse are right for the process and are committed to a healthy outcome for your family, you will likely finish in mediation. The process of mediation is what the couple makes of it together. However, there can be times they cannot agree, in spite of their best efforts, and also that of the mediator.
If you and your spouse cannot agree, you may have to finish your agreement through private lawyers. The silver lining, often times, is that the couple has usually made quite a bit of progress in mediation such that they may be left with only one or a few unresolved issues they could not overcome in mediation. This usually means they do not have to start the process all over again and go to court, and can usually come to terms on the remaining unresolved issues in a shorter period of time through their attorneys.
Although Main Line Family Law Center does not represent clients in litigated court matters, it is happy to refer its clients to a network of private divorce lawyers with reasonable hourly rates who are committed to first finding solutions to family law problems without the need for costly and painful litigation.
Spouses will need to bring current statements of all marital assets and debts, as well as copies of tax returns for the previous three years, paystubs, W-2's, any appraisals of properties or businesses, as well as other specific items.