When your marriage is over, one of the first decisions you'll have to make is which process to use to get divorced. Going immediately to court and filing for divorce is one option, but a court battle isn't the best choice for everyone. For all those people looking for a cheaper and less combative way to go, divorce mediation is a popular alternative.
Divorce mediation is a method of "alternative dispute resolution" (ADR). Its purpose is to help couples settle their issues without lengthy and costly court battles.
If you decide to head straight to court, be aware that many courts require divorcing couples to try mediation while the divorce is pending—especially when there are child custody and visitation issues to be resolved. Court-ordered mediation is often free.
Private mediation, on the other hand, is voluntary. You and your spouse can decide to mediate at any time before or after you file for divorce. Although you'll have to pay for private mediation, it's often more successful than court-ordered mediation. And, by mediating, there's a good chance you'll ultimately save money by avoiding the court costs and lawyers' fees that come with hashing it out in court.
In divorce mediation, spouses meet with a trained, neutral professional called a mediator. The mediator guides the spouses through discussions aimed at reaching agreement on the issues necessary to finalize the divorce—for example, property division and child custody. The mediator doesn't offer legal advice or make any decisions for the couple.
Mediation often happens in an informal setting like the mediator's office, but online divorce mediation has also become popular.
All mediators have their own styles and methods. For example, some mediators meet with both spouses in the same room, while others prefer to keep the spouses separate and shuttle back and forth between the two. No matter what, the mediator always strives to keep the negotiations focused and civil.
After successful mediation—in which the spouses reach agreement on all the issues in their divorce—most mediators will prepare a written settlement agreement.
Once the spouses have a written settlement agreement, they can file an "uncontested" divorce. Courts often finalize uncontested divorces much faster than contested cases, which can take a year or more to complete.
Sometimes, spouses settle only some—or none—of their divorce-related issues in mediation. In that situation, the spouses must either settle later on or go to court to resolve the remaining issues.
In general, mediators will either charge by the hour or charge a flat fee.
Almost always, the final cost of divorce mediation depends a lot on how well the spouses can cooperate. (We did find, though, that the typical total cost is between $3,000 and $8,000.)
One of the major benefits of mediation is that because the spouses usually split the fee, you'll pay a lot less than you would if each of you hired your own attorney to battle it out in court.
The mediation process can be as short as one session or last several weeks. Sometimes it can be longer. How long divorce mediation takes depends on factors such as:
In mediation, you'll have a lot more control of the process—especially when it comes to pace and scheduling—than you would with in a court case.
In choosing a mediator, a lot depends on the issues you're trying to resolve. For example, if your only disagreement relates to money or distribution of marital property, you might want a mediator who specializes in financial disputes. Or, if child custody is the main sticking point, you could opt to work with a mediator who is specifically trained in custody and visitation. However, any mediator you work with—specialized or not—should have divorce-specific training and be familiar with your state's divorce-related laws.
Mediators sometimes suggest that the spouses bring in specialists to address certain items. For example, it might be helpful to have an appraiser to assess the value of property so that it can be fairly divided between the spouses. Or a psychologist might be able to help resolve a stalemate on custody and visitation.
Even though hiring specialists might add to the cost of your mediation, you'd likely need to hire those same professionals if you went directly to court. And, in all probability, you'd be paying even more for their services, because they'd have to appear in court to testify.
Many mediators offer a free informational session or have a thorough bio on their website—take advantage of these opportunities to find out as much as you can about qualifications when doing your research. Ideally, your mediator will have significant training (many mediation courses involve at least 40 hours of instruction) along with specialized divorce knowledge. A mediator who doesn't focus on divorce might be qualified to handle your mediation, but a specialist might be able to suggest more creative solutions for issues you and your spouse are struggling to resolve.
Don't be shy about asking how many cases the mediator has handled, and what percentage resulted in a written settlement agreement. However, if you're very comfortable with a mediator who's properly trained, lack of experience needn't be a deal breaker.
You might also want to find out whether the mediator is certified by your state's courts. Court certification isn't always necessary to be a mediator, but it's another indicator of expertise in the field. You might be able to find a list of certified mediators on the state court's website.
Finally, choose a mediator you feel you can trust. Aside from expertise, you need someone who you believe will listen carefully and be even-handed in interacting with you and your spouse.
Recommendations from friends or family members who've been through divorce mediation are often the best referrals you can get. Here are some additional ways you might be able to narrow down your mediator search:
You don't need a lawyer to be present with you in mediation. In fact, many mediators don't want lawyers participating, because their presence can create a confrontational atmosphere that prevents cooperation.
No matter your mediator's rules about attorneys, you're always free to consult with an attorney outside of the mediation. For example, you can speak with an attorney before your mediation to help you think through the issues that need to be resolved. Alternatively, you might want to have an attorney review the agreement that results from your mediation.
For divorce mediation to be successful, both spouses must be committed to the process and the goal. A willingness to compromise is essential.
There also has to be a level playing field. If either spouse has the upper hand, in one form or another, mediation won't work and you'll probably need help from an attorney. For example, when a spouse has been abusive, there's a strong likelihood the other spouse will be too afraid to speak openly in mediation. In fact, some mediators won't take cases involving domestic violence. (If there was recent abuse or you have been threatened, you should get help from a lawyer or a resource dedicated to victims).
Likewise, if a spouse is deceitful, mediation probably won't work. (That's especially true when a spouse is suspected of hiding assets.) A workable settlement depends on both participants being truthful and giving a full accounting of everything they own.
Also, you'll probably want to at least consult a lawyer if your spouse already has one or is legally claiming that you're at fault for the divorce (something you can do in some but not all states).
Even if you and your spouse don't settle all your issues during mediation, you'll likely reach resolution on some. Having an agreement about even one or two issues can reduce your overall costs and time spent in court, making it worth the effort more often than not.