What Is Divorce Mediation?
Author: Diana Mercer
What is divorce mediation? What is custody mediation?
Divorce Mediation and Custody Mediation are ways to resolve your divorce or custody dispute which lets you keep full control of the outcome. The only people making decisions are those involved in the dispute, unlike arbitration or litigation where a judge or an arbitrator makes the final decision.
Divorce Mediation and custody mediation typically consist of several joint meetings between spouses (or parents, if you are not married) which last 3-4 hours each. During those meetings, you and your spouse discuss the issues which need to be resolved in your case. The mediator is there to facilitate the discussion, assist with communication, provide information and suggestions, and use specialized training to assist the two of you to resolve your differences and write up an agreement which is fair to both of you, and, if you have children, in their best interests as well.
What happens at the first mediation meeting?
Many mediators offer a free mediation orientation so that you can meet the mediator(s) and decide if you’d like to try using mediation to settle your divorce or Family Law matter. Usually, the orientation lasts just 20-40 minutes. The mediator will explain the process, and you can ask any questions that you wish. The mediation orientation is about the mediation process, and not the details of your particular case. Ask if the mediator you’re considering offers an orientation because getting divorced and choosing a mediator are very personal, very important decisions. Make sure you choose the right professional mediator and mediation office for your needs.
The actual Mediation process involves sitting down at a table in a neutral location where both parties will have the opportunity to present their stories in a balanced and non-confrontational way. Each person gets a chance to tell their side, and you’ll decide in the session how the session will unfold, like who goes first and how long they speak, whether you’ll stay in joint session or speak separately with the mediator, and whether you’ll have your individual attorney present at the session.
Generally, mediation sessions are structured with a short intake, setting an agenda (a list of the issues) and then the decision of which issue to discuss first. Generally, you’ll start with the smaller issues and work your way up to the tougher issues so that you can build some momentum. You’ll work through each issue until there are no more issues left.
Ask if your mediator will write a summary letter about your session, including the agenda, tentative agreements, things to think about, and to do list for the next session. These letters are a lot of work for the mediator (ours are billed at 1 hour but usually take 2 or 3 hours to prepare) but they’re very valuable. With a summary letter, everyone starts with the same “memory” of what happened in the session, and if you need to see an attorney, accountant, or therapist in between sessions, you can share your summary letter with him or her so that they know what you’re working on.
Sometimes, people find they need more information before they can make an agreement or before the session can continue. When that happens, you can either go on to another issue, or stop the session and make another appointment, so that you’ll have time to gather the information you need, or speak to your accountant, lawyer, or other advisor(s). Mediation works best when people don’t feel rushed to make an agreement and when they have all of the information they need to make a good agreement.
Mediation is the most practical and healthy choice for a person to make when facing a divorce. It helps you avoid the stress of litigation, saves you money, and helps you put the unpleasantness of divorce behind you as quickly and peacefully as possible. Generally, the agreements reached are more thoughtful and tailored to your individual circumstances, and your family’s circumstances, than the typical court judgment. As a result, the adherence rate to mediated agreements is much higher than that of adherence to court orders.
Why is mediation cheaper?
Mediation is cheaper because it’s faster and more direct. Most people come to mediation willing to work on the issues and to learn how to communicate better. That willingness translates into a less expensive divorce because resolving a case is almost always cheaper than taking it to trial. Rather than speaking through lawyers, you speak with each other (with the mediator’s help, of course) about your goals and issues.
Even if lawyers are involved with your mediation, they aren’t spending hours and hours in court waiting for the judge to be free to hear your trial or billing for endless back-and-forth phone calls about the smallest details of your case. When you’re using your lawyer, they’re actually working on your case and helping to settle. Consequently, their fees are typically much lower than in a case which is brought to court to litigate.
Many mediators’ fees are lower than local divorce lawyers. On average, clients resolve their cases with a mediator’s help in 4 to 10 hours.
Why is mediation more effective?
Mediation is more effective because:
* you get a chance to fully discuss an issue before you agree on it
* you can try out agreements before the judge makes the divorce final
* you learn to communicate better which makes new and old issues less likely to turn into arguments, or worse still, days in court
* you can take time in between each appointment to think about whether or not a proposed solution makes sense
* if you need to change a solution before finalizing your divorce in court you can do it quickly and easily
What if we can’t even talk? How can we mediate?
If you are willing to try to learn to talk to each other, then it’s worthwhile to try mediation. Mediators are professionally trained to help people to build agreements and to learn to communicate with each other. If you’re willing to try, a skilled mediator can get you talking.
As mediators, we’ve found that everyone who wants to reach an agreement and who is ready to reach an agreement will reach an agreement in mediation. If you don’t want to reach an agreement or you’re not ready to agree, there’s not much a mediator can help you with. On the other hand, if you’re in a lot of conflict, not speaking, and ready to go to court yet you’re ready to and want to reach an agreement, a mediator can help.
If being in the room together is too difficult, ask to schedule separate sessions either at different times or at the same time, but in separate rooms (called a caucus). This can let you take advantage of the benefits of mediation without the stress of being together in the same room.
What happens if we don’t agree in mediation?
Even if you cannot agree on everything, you will probably be able to agree on some things. Each issue that you resolve in mediation translates into less time in court, less legal fees and less aggravation for you. And, for those issues you could not agree upon, at least you understand what those issues are, and where you stand. At the very least, you will feel like you tried your best to reach an agreement before resorting to court intervention.
Sometimes new information, proposed solutions, or the passage of time makes it possible to resolve a previous disagreement, so even if you don’t resolve your issue immediately, you may be able to resolve it a week or a month later, without having to go to court. Because mediation is flexible, you’re free to schedule an additional appointment at any time. You’re also free to stop the mediation at any time if you don’t feel you’re making progress toward resolution.
Interested to learn more? Visit Diana Mercer’s Peace Talks Mediation Services, Inc. web site, http://www.peace-talks.com or the Peace Talks Mediation Services Blog, http://www.peace-talks.com/divorcemediation/index.php Diana Mercer, is the founder of Peace Talks Mediation Services in Los Angeles (http://www.peace-talks.com) and the co-author of Your Divorce Advisor: A Lawyer and a Psychologist Guide You Through the Legal and Emotional Landscape of Divorce, (Fireside 2001) http://www.yourdivorceadvisor.com. For free resources and planning tools for divorce and custody, visit our resource center at http://www.peace-talks.com/prepare.php.