Divorce mediation provides an alternative path for couples who don’t want to go the route of a traditional court battle and/or for those who want to approach a potential divorce in as emotionally healthy a way as possible. Divorce mediation is a method of resolving divorce issues without a court deciding for you. Below, we’ll explore what exactly divorce mediation is and how the process works, some of its main benefits, the cost, and more.
What is Divorce Mediation, and How Does it Work?
To put it simply, divorce mediation involves working through the divorce with a trained, neutral third party who may or may not be a lawyer. Mediation helps to make divorce more collaborative, and it has gained popularity as an alternative to attorneys and courthouses for various reasons.
When entering into divorce mediation, divorcing couples meet with one or two mediators who act as impartial facilitators. The mediator(s) do not work for either spouse, they do not take sides, and they do not tell the couple what to do or give them legal advice. Instead, they help the ex-couple to communicate more effectively, identify issues and solutions, and make mutual agreements with which both sides feel satisfied. Mediation sessions give ex-couples an opportunity to discuss issues important to them in a more relaxed, confidential setting.
The process itself is oriented towards open, transparent, and honest communication. Mediators are experts in conflict resolution and communication, and thus, are able to guide divorcing couples to establish their shared goals and interests. These shared goals involve caring for children, divvying up assets fairly, and becoming independent from one another. With these goals in mind, an ex-couple is able to create win-win solutions that satisfy the key interests of both parties as much as possible.
Key Benefits of Divorce Mediation
There are many potential advantages to choosing mediation over traditional divorce litigation:
Compared to litigation where couples battle it out through attorneys, mediation puts the control of the outcome into the hands of the people who are actually going through the divorce. They make the decisions, rather than leaving it up to a judge. The flexible structure of this process also allows couples to be creative and tailor agreements to their family’s specific needs. Mediation is all about mutual interests and cooperation, not the combativeness typical of more traditional divorce processes.
Guess what’s less expensive than formal litigation? Mediation. Although every case is different, mediation is typically cheaper in the majority of cases. The average hourly rate for a mediator is usually lower than an attorney’s hourly rate. Not to mention, litigation is known to go on for months or even years, eating through savings, morale, and emotional health in the process.
Safekeeping your information
Mediation sessions tend to be more confidential and private. This is because mediation is not put on public record as may happen with litigation. As a result, mediation can protect sensitive personal or financial information from becoming publicly recorded by a court.
Since mediation helps open lines of communication and healthier communication patterns, it helps to lay a strong foundation for positive post-divorce communication regarding children, property, and whatever else the ex-couple might need to communicate about in the future.
Flexibility and custom plans
Mediation encourages the crafting of creative, customized solutions. These agreements allow for out-of-the-box thinking and are not limited to what a judge can order. The possibility for flexibility in the process is especially advantageous when it comes to making plans for co-parenting. Many divorcing couples with kids choose to work with child-focused mediators, who help parents develop co-parenting agreements that suit their family’s unique needs rather than boilerplate custody arrangements.
When Is Mediation Not Appropriate?
While mediation has many benefits, it is not the best choice in every divorce scenario. Mediation may not be appropriate if:
- There are allegations of domestic violence or abuse. The process requires transparency in communication and voluntary agreement without fear or coercion. Whether abuse is real or perceived, there will not be enough of a sense of safety to allow for genuine collaboration.
- One party refuses to disclose financial information or negotiate fairly and in good faith.
- Either the ex-partner refuses to compromise or seeks to punish the other. Successful mediation calls on both sides to make concessions and engage in mutual give and take.
- Either or both people are unable to communicate without high levels of emotional reactivity.
- One or both parties have a mental illness or substance abuse issue that impairs their judgment.
Before starting mediation, the mediator(s) screen the participants in order to determine whether mediation is a suitable route for them to take. If not, collaborative divorce or litigation may be more suitable options.
How to Select the Right Divorce Mediator
In order to ensure a (relatively) smooth and fruitful process, it’s crucial that divorcing couples carefully select the right mediator. Here’s how.
Training and Experience
Divorce mediation is a highly specialized skill set that differs from other types of mediation and fields of law. Before you sign on with someone, find out how many divorce cases the mediator has facilitated. Additionally, many divorce mediators have other professional qualifications; they could be licensed attorneys, therapists, social workers, or financial professionals. Many states also have mediation certification programs.
Rapport, Trust, and Neutrality
It is also important that both people in a divorcing couple have a sense of personal rapport and trust with the mediator. Their role is pivotal, so couples should feel comfortable opening up to them. The mediator should help build trust by showing that their approach is balanced and neutral. The person who mediates a divorce should never take sides, push their own agenda, or let their biases influence the outcome. Instead, ex-spouses should search for a mediator who understands but does not judge. If either spouse feels uncomfortable or emotionally unsafe with someone, they’re not the right mediator.
Ability to Handle Complex Financial and Legal Matters
Divorce mediation isn’t only about reaching a consensus and crafting solutions; it’s also about understanding the financial and legal realities at play. This is necessary for dividing assets, coming up with child support and/or spousal support arrangements, and navigating pretty much all the details of settlement agreements.
Background in Social Science
Divorce mediators should be trained in and understand family dynamics, communication, conflict resolution, and management. They should know how to navigate the emotional issues common in family disputes, and they should be highly skilled communicators who know that conflict can be a catalyst for deeper understanding and sustainable solutions. With the appropriate background, divorce mediators are able to confidently guide the ex-couple through the range of conflicts that come up during mediation, channeling conflict towards positive results.
What Does Divorce Mediation Cost?
Costs vary substantially based on factors such as the mediator’s level of experience, the complexity of the issues at stake, and the number of sessions required. That said, divorce mediation is usually significantly less expensive than litigation.
On average, divorce mediation costs between $3,000-$8,000. Simple cases with minimal debts and assets, done for couples with no children, can be as low as around $3,000. However, more complex cases involving business valuation, income analysis, retirement plans, child custody arrangements, or other complications could even be more than $8,000. Luckily, that’s still substantially less than litigation, which can easily cost tens of thousands of dollars.
Many mediators will charge an hourly fee in the $100-$400 range. The total is based on this hourly rate, including any time they spend drawing up documents outside of the sessions themselves. However, there are some mediators that will charge flat fees based on the number of mediation sessions needed to complete the process, which will allow you to more easily budget for your situation.
Divorcing couples who go through mediation usually save tens of thousands of dollars in legal fees, even with complex cases. However, more importantly, they also save a lot of strife and gray hairs that come with the protracted, stressful divorce litigation process.
The Bottom Line
Divorce mediation has been soaring in popularity in recent years because it offers a less adversarial, more empowering, and more graceful way to separate. Compared to litigation, it also has much more potential to pave the way forward for a healthy co-parenting or social relationship going forward, if the couple wants or needs to remain connected. Additionally, it’s usually far cheaper than going the traditional route with lawyers. Although it isn’t suitable for every case, it’s an excellent option for couples truly ready to collaborate on a settlement agreement underpinned by win-win solutions.
Cary Jacobson is the founder and CEO of Jacobson Family Law. Cary has been practicing law for over a decade, having successfully represented clients in all facets of family law proceedings. Jacobson Family Law focuses on assisting clients in creating out-of-court solutions to their separation, divorce, custody, and other family law matters without the drama and stress associated with litigation. Additionally, Jacobson Family Law assists clients with protecting their assets through the negotiation of pre/post-nuptial agreements and estate planning.