What is Divorce Mediation?
Divorce mediation is an alternative to courtroom litigation for couples contemplating the termination of their marriage. It is a process for resolving marital disputes with the aid of a neutral third party called a mediator. The goal is to achieve a mutually agreed upon settlement without the financial and emotional costs associated with litigation. Open, honest communication and respectful interaction are necessary elements of this method of divorce.
The term litigation refers to the process of engaging in legal action in a court of law. More specifically, divorce litigation refers to legal proceedings involving two people who are pursuing dissolution of their marriage through the judicial system because they cannot agree on terms of a settlement. Each party retains an attorney to represent their interests. Settlement issues include things like spousal support, child custody, and property distribution. The final agreement is determined by the court.
Mediation gives divorcing or separating couples an opportunity to focus on planning their lives rather than worrying about the complexities of the judicial system. That said, mediation is not for everyone. Abuse cases and highly contentious couples are generally not candidates for mediation. For many divorcing couples, however, there are several benefits of mediation over litigation. For example:
- Financial cost – Mediation is usually less costly than litigation due to the fact that there are no court costs and because separate, opposing attorneys do not need to be retained for the entire mediation process. (It is recommended, however, that each spouse engage a consulting attorney for the final review of the settlement agreement.) In addition, litigation cases can last for extended periods driving up cost as lawyers present evidence and make arguments and crowded court calendars dictate the pace of the process.
- Emotional cost – Divorce can be one of the most stressful events a person can experience in their lifetime. In fact, according to the Holmes-Rahe stress scale, it ranks #2 out of 43 stressful life events. Marital separation ranks #3. Litigation tends to exacerbate an already stressful situation because there is usually no communication between the spouses except through attorneys who exploit issues that can escalate hard feelings. Mediation allows for healthy airing of views and emotions which can reduce anxiety and stress.
- Decision making – In the mediation process, the husband and wife are directly involved in making decisions and crafting the final agreement. In litigation cases, direct communication between the spouses is generally very limited or nonexistent and a judge makes the final decisions.
- Confidentiality – Mediation is a private process. Discussions and related material are confidential. Litigation is a public process in which courtroom sessions and court records are open to the public.
- Impact on children – Given the less formal nature of mediation, interim settlements can sometimes be reached which can minimize the negative impact of the divorce process on children. In litigation cases, children tend to be pawns and emotional victims.
- Time involved – While every case is different, and depending on the assets and issues involved, if both parties are genuinely interested in achieving a negotiated settlement and moving on with their lives, mediation is usually the more expeditious path. Divorce trials can drag on as lawyers zealously represent their clients and battle every point and counterpoint.
The Mediator’s Role
The mediator facilitates discussions in an impartial manner and helps resolve differences between the parties. She promotes an atmosphere of dignity and respect while encouraging open, honest, and clear communication. To ensure a common understanding, the mediator asks questions and reframes issues or concerns important to each party. The mediator helps keep conversations on track and offers alternative perspectives when appropriate.
Melissa Goodstein is a New York attorney specializing in mediation and collaborative divorce. She has been helping divorcing and separating couples for two decades. Melissa advocates a holistic approach to achieve a successful transition to a new life.
How Does the Divorce Mediation Process Work?
An agreement to mediate is signed by the couple as well as the mediator and a series of confidential meetings take place. Sessions are one to two hours in length.
In the first session, an agenda is developed. All open issues are identified and prioritized and decisions are made regarding information to be compiled and shared between the parties.
After the initial meeting, financial information is gathered by both parties so it can be reviewed and discussed in future sessions. If necessary, independent experts such as accountants and appraisers are engaged.
Subsequent sessions are focused on examining options that address the concerns of each party. The mediator supports this process by offering common ways divorce issues are resolved and, when necessary, by explaining applicable law.
The ultimate goal of the divorce mediation process is to establish agreement on all open issues. Once that is accomplished, a settlement agreement is drafted.
Settlement Agreements Resulting from Mediation are Legal Binding Contracts
Before signing a settlement agreement, each party is encouraged to have it reviewed by independent counsel. Once it is signed and notarized, it is an enforceable contract. At that point, it can be filed with the court and the terms can be incorporated into the divorce judgment.
How Long Does Mediation Take?
There are a number of variables that determine the length of the mediation process. The quantity and complexity of issues, documentation to be compiled, and the capacity of each party to be flexible during negotiations are key factors which affect the time it takes to reach a settlement. Some cases are resolved in as few as two sessions while others take substantially longer. Every situation is different.
What is the Cost of Divorce Mediation?
Couples can expect to pay a mediator an hourly rate which is payable at the conclusion of each session. Contact Melissa Goodstein for details.
Also, as mentioned above, individuals are encouraged to engage the services of a consulting attorney to review the final version of the settlement agreement. These attorney fees are separate and in addition to the cost of the mediator.