Divorce mediation isn't for everyone.

Do you and your spouse have an idea of how you would like to divide your marital property? Do you want to avoid spending your children’s college funds on divorce lawyers but still need guidance on how to handle property division, child custody and child support? Are you confident in your knowledge about the assets and debts that you and your spouse have? If so, then divorce mediation may be right for you.

However, before deciding that you want to mediate your divorce, you need to first make sure that this process is right for you and your case. I want to help you do that.

So, in this article I’ll answer the following questions:

Why has divorce mediation become more popular?
What exactly is divorce mediation?
What do I look for in a divorce mediator?
How does divorce mediation work?
Is divorce mediation right for my entire case or only parts of it?
How do you know when divorce mediation is not right for your case?
Can I still use an attorney if my spouse and I mediate?
Do I have to use an attorney if I choose divorce mediation?

Why has divorce mediation become more popular?

While, mediation has always been a tool for resolution of court cases, divorce mediation seems to have become more popular in the last ten years. I couldn’t find any studies showing how many divorce cases are resolved through mediation vs. litigation. However, I have had many more clients ask about the process in the last few years than ever before. So based on my informal survey, I can say with confidence that mediation is very popular right now.

But why? I think the rise in mediation is based on a two main reasons.

First, most people, unlike what you may see on tv and in the movies, don’t want to engage in World War III with their ex-spouse. They want to come to a resolution quickly and without protracted litigation so that they and their children can move on.

Second, it is generally cheaper to mediate your case than to litigate it. Litigation involves preparing for court, engaging in settlement negotiations, hiring experts, and exchanging formal document requests and responses. Those all sound like super cheap action items, right? Generally, mediation doesn’t require any of these things and so, it helps to keep the parties’ legal fees to a minimum.

What exactly is divorce mediation?

Divorce mediation is a process in which a trained impartial third party works with a couple (and sometimes their attorneys) to resolve all or some of the issues in their divorce. According to a recent survey, 90% of couples who started the divorce mediation process successfully resolved their case via mediation.

Mediation takes place in conferences outside of the court system and without court proceedings. The ultimate resolution is memorialized in a final agreement which is filed with the Court so that the parties can complete their case and get divorced. This is particularly important in those states where the parties must first resolve their economic claims before a divorce decree will be entered.

What do I look for in a divorce mediator?

So you’ve decided that divorce mediation is right for you. Great. But how do you find the right mediator? Your selected divorce mediator should meet the following criteria:

1. Trained and certified (if available in your state) as a divorce mediator.

Just because someone is a family law attorney does not mean that they are qualified to be a mediator. Certified mediators generally take hours of classes to be trained in mediation. Make sure that your mediator is train in this area. Their website should indicate their level of training. If it doesn’t, ask!

2. Experienced mediating family law cases.

Mediation is not just used in family law. Do not hire a mediator that has only mediated business or insurance disputes. While those mediators may have the right skill set to conduct a mediation, they do not know the property, custody and support laws of your state.

This is critical.

How can they help you and your spouse agree on something when they don’t know what the applicable law is? It is also preferable to hire a divorce mediator that practices in the geographical area where you live as you will generally be traveling to their office for the sessions.

3. Able to maintain neutrality during the mediation sessions.

Besides hiring a trained mediator, you want to make sure that you feel that the mediator is remaining neutral in your sessions. They should not have any association with your spouse or their lawyer. It is not the mediator’s job to advocate for either side and, in fact, doing so would be a violation of their role. Rather, the mediator’s job is to help the parties address the issues and come to a resolution that they both can agree upon.

4. Knowledgeable about the unique issues of your case.

Similar to your divorce attorney, you should feel confident that the mediator can understand and address the claims in your matter. For example, if you or your spouse own a business, you want to make sure that you select a mediator that has dealt with dividing business assets in the past. They need to know what documents to request, what questions to ask and the topics that need to be discussed during the sessions so that you and your ex can come to an agreement on how to appropriately divide this asset.

5. Good writing skills.

After each mediation session, the divorce mediator will likely prepare a memorandum of what was discussed and what was agreed upon. Also, at the end of the mediation process, the mediator may prepare an overall agreement for the parties to sign memorializing their settlement. It is important that this agreement is well written as this is the final resolution of your case.

Poor drafting or, worse, an agreement that fails to address all issues, can lead to future problems. Those future problems could result in you having to go to court, the exact process you were seeking to avoid in the first place! If you are concerned about the drafting of a mediated agreement, and you don’t already have an attorney, I suggest contacting one to review the agreement for you to at least spot these potential drafting concerns.

P.S. Finding the right divorce mediator

So you know what kind of mediator that you need and what skills they should have but how do you find them? Ask your attorney! I have a lot of clients who ask about divorce mediation in the initial consult.

When they do so, I explain the process and the pros and cons of mediation based on the facts of their case. I also will provide them with names of mediators if they want to contact them directly.

If you don’t have attorney, I would ask any friends that you know that have mediated their divorce claims for referrals. Finally, I would suggest doing online research and then contacting the mediator’s office to get more information about their training, pricing and procedures.

How does divorce mediation work?

Every mediator’s process varies slightly. Moreover, a case may need to vary from the mediator’s basic procedure because of the nature of the claims, the parties’ schedules, etc. However, here is a general step by step guide for the divorce mediation process:

1. Contact the mediator to engage their services.

Make sure to ask about fees and costs. Some mediators charge by the hour like attorneys. Others may charge a flat fee per session or per issue. It is important that you understand their fee structure up front and how the mediator is to be paid.

2. Schedule an initial session with the mediator.

Some mediators work with the parties and their attorneys. Some just work with the parties and the attorneys do not come to the sessions. Regardless, the parties (their attorneys if applicable) and the mediator should schedule an initial meeting.

The purpose of this meeting is for the mediator to understand the facts of the case and what the issues are. At this session, the mediator may be able to identify what information that the parties will need to bring to the next session to help facilitate discussion.

For example, if the issue is property division, the mediator will likely want the parties to provide bank statements, tax returns, credit card statements, etc. at the next session so they can discuss the values of the assets and debts of the marital estate.

3. The mediator will prepare a session memorandum.

After the meeting, the mediator will prepare and provide the parties a session memorandum outlining their discussion, what documents/information is needed, and the next steps. If the parties are working with attorneys they will be provided this memorandum as well.

4. Rinse and repeat.

The parties will then schedule subsequent sessions to continue to resolve issues, with the mediator issuing session memoranda after each meeting. This is done as many times as is necessary to resolve the case or until the parties give up on the process.

5. Preparing a memorandum of understanding or a final agreement.

If the parties are able to come to an agreement, the mediator will either prepare a final memorandum of understanding outlining the parties overall settlement or a property settlement agreement to be signed by the parties. What is the difference?

The memorandum of understanding is one step before the property settlement agreement. It is not the actual agreement to be signed by the parties and filed with the court. Rather, it is used by the parties’ counsel to draft a property settlement agreement. Some mediators feel that the parties’ attorneys should be the ones to prepare the property settlement agreement. Other mediators will prepare the agreement, particularly when the parties are not represented by counsel.

Is divorce mediation right for my entire case or only parts of it?

It really depends on the facts of your case. For example, I have clients who are willing to mediate child custody and personal property matters but not property division issues. This is because the clients don’t feel comfortable discussing finances with their spouse and know they will not be able to come to an agreement without court intervention.

Still, I have had other clients choose to only mediate one part of their divorce (such as custody) because they knew that they and their ex were close to an agreement and just needed a little help from a mediator to resolve some remaining minor issues.

How do you know when divorce mediation is not right for your case?

My biggest concern when a client asks me about mediation is whether or not I think that they are going to be just as protected in mediation as they would be if we went to court. What do I mean by that?

Well, I always say that the dynamics of your marriage will be the dynamics of your divorce. If your spouse was a bully in your marriage, they will be a bully in your divorce. If they were a liar in your marriage, they will be a liar in your divorce. You get the picture.

People don’t change their tactics when they go to mediation. While a mediator will attempt to make sure that your spouse discloses all the required information and doesn’t intimidate you, they simply don’t have the same powers to address these issues that the court system does. Also, mediation requires you to be in the same room as your ex. If you don’t feel comfortable doing that then mediation will never work. You and your spouse have to be on speaking terms to get any benefit out of mediation.

Finally, I always worry about clients going to mediation by themselves who don’t know anything about the assets of the marital estate or the income of the other side. Again, while the mediator will try to address all these issues, you can’t ask about assets or income that you don’t know about and that the other side hasn’t disclosed.

If you still want to mediate but are concerned about understanding the finances and what to ask for, I suggest working with an attorney during the mediation process so nothing is overlooked and you feel more comfortable with the result.

Can I still use an attorney if my spouse and I mediate?

Yes! You can use an attorney in two ways during divorce mediation. First, the attorney can accompany you to the mediation sessions to represent your interests and make sure that no issues are overlooked. Second, you can attend the mediation sessions on your own but work with an attorney in between mediation sessions.

The second way is usually how I work with clients that are in the mediation process. While they attend the sessions alone, I get copies of the mediation session memoranda either from the client or the mediator. Then, I speak with the client and we discuss the memoranda and what needs to be done before the next session.

I am also able to give them my opinion regarding issues discussed and what was agreed upon. I find that some client’s need the “seal of approval” from an attorney so that they know that what they agreed to is fair and that they aren’t getting “screwed” by their spouse.

Do I have to use an attorney if I choose divorce mediation?

No. Many parties that mediate do so because they don’t want to use attorneys to save on legal fees and minimize animosity. If this is you, please make sure that you read my section above about why divorce mediation may not be right for you. While mediation is a great tool to resolve many divorce matters, it is not right for every couple and every case.

Mediating a case that should be in the court system or in the hands of attorneys could cost you more money in the long run. If you are unsure, I suggest that you meet with a divorce attorney for an initial consult to discuss your case before making a decision.

My major takeaways about divorce mediation

I hope that this article has answered all your questions about divorce mediation. If you are interested in using this method to resolve your case, remember the following:

What to look for in a divorce mediator;
How divorce mediation works;
How to decide if divorce mediation is right for your entire case or only parts of it;
When divorce mediation is not right for your case;
You can still use an attorney if you and your spouse mediate; and
You don’t have to use an attorney if you choose divorce mediation.

Have more questions about the mediation process? Are you a divorce mediator who has information to share? Comment below.

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