When you are faced with the prospect of divorce, your initial thoughts may be “I need to hire a lawyer”, “This is going to be war”, “Will my children be damaged by a nasty divorce?” It doesn’t have to be this way, you have options about how you want to divorce and it doesn’t have to be nasty.
Divorce Mediation is a process where a neutral third party, the mediator, uses a structured method to help couples end their marriage in a more peaceful way. Unlike a judge or arbitrator, the mediator does not decide how the issues should be resolved. The couple, not the court, determine the terms of their Settlement Agreement and time share of their children. Mediation is an out of court alternative to an adversarial divorce. Mediation can also be used in cases involving custody and visitation issues alone.
Mediators can be lawyers, accountants, therapists or other professionals who have been trained as mediators. However, if the mediator is not an attorney, legal documents will need to be prepared by an attorney or legal assistant. The mediator will address this issue with you in your session.
Divorce mediation is a better alternative that an adversarial divorce for several reasons.
- Mediation is a less stressful, non-litigating and a more peaceful resolution to ending your marriage.
- Mediation allows you, the clients, to stay in control of the process rather than the court system.
- Having a mediator allows the focus of your divorce to be on the important concerns of you and your family and not just about the standard issues of divorce. Mediators are neutral in the process which accommodates and facilitates the couple to work out a solution that works in the best interest of their family.
- Mediation reduces negativity and miscommunications that an adversarial divorce may create. An adversarial divorce sets up an “US” against “THEM” mentality or a “Have your attorney talk to my attorney” way of handling situations. Mediation allows you and your spouse to be in the same room together to determine the needs that best suit your specific situation and family. When children are involved in a divorce, parents still need to continue to be parents. If there is an adversarial environment between the parents, the children get hurt the most.
- Mediation is more cost effective than an adversarial divorce. Normally in divorce, a great deal of time is spent with attorney’s talking to each other, attorney’s talking to their clients, attorney’s clarifying the issues and going back and forth with each other. This all takes time and money. There is also a lot of time spent with attorney’s going to court, scheduling hearings, and waiting for the hearings to begin.
- Sometimes attorneys get involved in the emotional aspects of divorce. This costs additional time and money and offers very little in terms of results. Attorneys are trained in the law, not the emotional aspects of divorce. The emotional aspects can best be handled with a licensed mental health professional outside of the mediation sessions or in a co-mediation session where a licensed mental health professional is also trained as a mediator.
However, divorce mediation is not for every divorcing couple. If there is an imbalance of power in a relationship (i.e., domestic violence, intimidating behaviors by one person or financial sophistication of one partner over the other), mediation may not be the best choice. It is important for both parties to enter into mediation sessions without fear of the other person to the degree that it would inhibit their decision making ability. Part of a mediator’s job is to help balance an imbalance should it become apparent. Mediation is a voluntary process, no one should be forced to choose mediation as their only option to divorce. Other risks in mediation may include:
- In order for the couple to make good agreements, both parties need to provide adequate and accurate information. If there is a concern that one party will not be forthcoming with information or is hiding something, mediation may not be best suited for you. There is no formal discovery in mediation.
- If there is a history of mental illness or substance abuse that affects the parties, other alternatives for divorce may need to be considered.
- There is also the possibility that you are unable reach a mediated resolution to your divorce or family issues.
Commonly asked questions about divorce mediation:
Do we need to file for divorce before coming to mediation?
No, during the mediation process the filing of the petition for dissolution of marriage or legal separation will be prepared by the attorney or legal assistant.
If we have already filed for divorce, can we still use mediation?
Yes, mediation can still be used if your divorce has already been filed. Even if the parties have already retained attorneys, mediation can still occur by placing the case on hold pending the mediation process if the parties agree to do so. In addition, either party has the right to consult an attorney at anytime during the mediation process.
Do we always meet together ?
As a general rule, all parties will meet together which creates an environment of trust and cooperation. Since the mediators are neutral in the process and are not invested in the outcome, the meetings will take place with both parties and the mediator present.
Using divorce mediation gives you the ability to restructure family relationships. When children are involved you will always be parents to your children. You will need to redefine how to parent your children in separate households. Divorce mediation will help you reach a more peaceful resolution to your divorce and allow an opportunity for creating a parenting plan that will benefit you and your children.
Susie Duffy, LMFT. - Susie Duffy's clinical experience is focused on the practice of collaborative divorce, divorce mediation, co-parenting and post-divorce relationships. She uses her training in family systems to work with couples, and families as they go through the difficult transition of divorce.
To learn more, see the following FamilyIQ courses: 
Divorce: Parent Education and Family Stabilization, Divorce: Co-Parent Communication, Divorce: The Initial Hurdles, Surviving Divorce
