FAQs – Choosing Mediation
We can’t agree on everything. What are our options?
Somehow decisions need to be made as regards division of assets and debts, spousal support, child support and a parenting plan. If you and your spouse can’t agree to everything on your own, your main options are choosing mediation, collaborative divorce, negotiation through attorneys or a court trial. Two other rarely used options are arbitration and rent-a-judge which are forms of private judging outside of the court system.
Choosing mediation involves both of you working with a trained mediator who will guide you through the decisions that need to be made and help you find a way through the sticking points. The mediator acts on behalf of both of you without favoring either side.
Collaborative divorce is a relatively new team approach. In addition to a lawyer for each party, the team may include a financial expert, a family therapist, a mediator and/or other professionals. At a minimum there will be a lawyer for each party. The lawyers commit to working for a negotiated settlement. If a settlement cannot be achieved, the lawyers withdraw and each party will need to hire a new lawyer to proceed with litigation. This approach gives you the benefit of maximum professional input for your decision-making.
If each of you hires a lawyer for representation through the litigation process, the lawyers will be expected by the court system to try negotiate a settlement to avoid the need for a trial. You and your spouse may or may not meet face to face in these negotiations.
Arbitration and private judging involve paying a private person (perhaps a retired judge) to make binding decisions in the areas you are unable to agree upon.
Lastly, a judge can decide your case at trial. You can go to trial with or without an attorney.
Is mediation for you?
Couples who want a fair divorce settlement and who want to make their own decisions regarding their financial and family future are excellent candidates for divorce mediation. Some people are hesitant in choosing mediation because of conflict and emotional intensity. It’s a misconception that mediation is successful only for low conflict couples. Mediators are trained and skilled in handling conflict. Often a visible conflict is easier to work with than one that remains largely hidden. A good mediator will also attempt to ensure a balanced “playing field” if there are imbalances between the spouses. I offer a free consultation to help you explore whether mediation would be a good choice for you.
When is mediation not appropriate?
Mediation is generally not appropriate when there is:
- a history of domestic violence, abuse or emotional intimidation;
- a restraining order currently in effect;
- an untreated alcohol or substance abuse or mental health issue of sufficient severity as to undermine competence;
- concealment of income, assets or debts (note that truthful and complete financial disclosure is required as part of the court process for obtaining a divorce);
- a refusal to participate honestly;
- an unwillingness to make any concessions or compromises;
- a disparity in the negotiating capabilities of the spouses that is too large for the mediator to be able to correct.
If any of these apply to you and you are still leaning towards choosing mediation, we would need to talk about them in some detail before deciding whether to proceed.
When is it appropriate?
If you are unable to agree on some or all of the areas of division of assets and debts, spousal support, child support and a parenting plan on your own, and if none of the factors above rendering mediation inappropriate apply to you, then mediation is normally an excellent choice. Mediation is especially appropriate when any of the following factors are present:
- you want to be directly involved in making the divorce-related decisions;
- you have children and want to minimize the negative impact on them;
- you want to minimize your expenditure on the divorce;
- your financial affairs are fairly simple;
- you want to settle your divorce relatively quickly;
- you are still willing to listen to each other;
- you would like the divorce to be a respectful, collaborative process;
- you still care about your spouse and want to come up with a settlement that is fair;
- your net worth is high or your financial affairs are at all complex.
Even if none of these factors are present, mediation is still likely the least expensive alternative you have to try to resolve the issues required for your divorce.
How can I encourage my spouse to consider mediation?
- discussing it directly with your spouse;
- asking me to contact your spouse in writing or by phone;
- providing information about mediation such as is on this web site;
- arranging for both of you to meet together with me for a free consultation.
Regardless, a respectful, no-pressure approach is best. If some divorce issues are very contentious and attempting to talk about them with your spouse only inflames the conflict, it may be wise to defer talking about them in order to preserve some sense of peace. This may also make it easier to work them out later in mediation.
For more information and suggestions, click here.
Wouldn't our high level of conflict prevent success?
Mediation is often most helpful when you and your spouse are having trouble talking. Consider how you want to pursue your divorce. Do you want to end up fighting through lawyers or do you want to be directly involved in a process that supports you in making your own decisions?
Many couples who are very emotional about the divorce are concerned about dealing with each other and negotiating face to face. However, divorce mediators regularly deal with high levels of conflict and have the skills to help you make steady progress in an environment that is safe and balanced.
Sometimes an issue (or the whole divorce) is so charged that one of you is not willing to be in the same room with the other. Even in this situation a mediator can often help you make progress, perhaps by meeting with each of you separately and shuttling back and forth with concerns and possibilities.
Could my case be too complicated?
No, provided you select a mediator who is well organized and comfortable with complexity. A good mediator will be able to suggest ways through the complexity to facilitate understanding and decision-making. Complicated cases will usually take longer, but the time and money savings compared with other approaches will likely be even more substantial.
Sometimes in complex cases it is helpful or even necessary to obtain input from outside specialist(s) and the mediator can help arrange this with your approval.
What are our chances for success?
Very high. If mediation is appropriate for your situation and you have a skilled mediator, your likelihood of a complete resolution is over 80%. Your likelihood of at least partial resolution from choosing mediation is over 90%.
How much will it cost?
Low cost is one of the top reasons for choosing mediation. Mediator fees for a comprehensive mediated agreement generally range between $800 and $3,500. The cost of having a Legal Document Assistant or other service prepare your court paperwork is additional. If you make use of lawyers and other specialists, these costs are additional. For more information, click here.
You and your spouse decide how to share the cost.
What if we already agree on some things?
Often this is the case. You have a good head start. One of the first steps in mediation is to identify what you already agree on. This will be included in your overall written agreement. There may be additional details to be fleshed out, perhaps to cover everything required by the court. The mediator can help you be sure that all of your agreements are well-informed.
What if we are not married but are separating?
If you are having difficulty coming to agreement as regards your co-parenting or financial affairs, choosing mediation can be just as applicable and helpful as in divorce mediation.
Divorce papers have already been filed. Is it too late?
I have a court date. Is it too late?
No. Advise your mediator about your court date so that mediation can be scheduled as soon as possible. If you reach an agreement in mediation, you can submit it to court and cancel or postpone your court date.
Can mediation help us get back together?
Couples therapy or marriage counseling is more appropriate for trying to restore a relationship. Divorce mediation focuses on facilitating the process of divorce – assuming this is what a couple wants.
If one of you definitely wants the divorce and the other is resisting it, this can present a major challenge because the resisting one may want to defer decision making. However, the open communication process provided in mediation often facilitates greater understanding and acceptance of the winding down of a marriage – if a divorce is what is to be.
On rare occasions couples do decide to attempt reconciliation after mediation.