Mediation is a formal process of negotiation that is often helpful before, during, and after a legal divorce. The goal is to come to mutually satisfying agreements on issues rather than taking those disputes to court. Mediation may seem dauntingly complex. However, it is potentially valuable as an alternative to more emotionally and financially costly litigation. And, mediation often provides more lastingly satisfying agreements to disputes than hostile court battles.
Over the past twenty years, in addition to working with thousands of parents as a divorce therapist, coparent coach, arbitrator, and expert witness, I have mediated hundreds of divorce agreements. The information below will help you be informed as you consider whether this increasingly popular form of dispute resolution is right for you. It will also help you be more prepared as you move into and through the mediation process.
What types of issues are addressed during mediation?
Parties bring issues to the mediation process which may later be entered into a formal court petition. The resulting court order will provide a clear guide for how to work with those issues going forward. Mediation can address financial issues (such as how to divide the equity in a home loan) as well as family issues (such as the parenting time schedule). Sometimes agreements are negotiated which are not part of a formal court petition, but importantly function to guide separated parents as part of their coparenting plan.
What is the difference between mediation and arbitration?
Mediation is a process of working with a neutral mediator to negotiate disputed issues. The neutrality of the mediator means that they will play only that role during and after the mediation. That means that if the mediator is an attorney, they will refrain from giving legal advice to either party. If they are a therapist, they will not act as a therapist during the process. About half of all mediators are attorneys and the other half are clinical social workers. Their professional experience and expertise inform how they perform the role of mediator. But, they will be remaining neutral as a mediator and will refer parties to others for legal advice, accounting advice, mental health services, or any other sort of professional help.
Because the mediator is playing a neutral role to support parties in the negotiation process, issues which remain unresolved at the end of the mediation will not be decided by the mediator. Mediators do not arbitrate disagreements. If an attempt to reach an agreement fails during mediation, it is not the mediator who will impose a decision. An unresolved issue will have to be dropped, negotiated privately, or taken to another forum such as the civil court.
Sometimes parties do get ordered to participate in arbitration as an adjunct to the formal court process. For example, in Indiana, there is a role of Parent Coordinator. A Parent Coordinator must be appointed to a case by a judge. Thereafter, parties participate in meetings with the person and the Parent Coordinator typically does enjoy some legally binding arbitration powers. So, parties in dispute of their parenting time schedule who have a Parent Coordinator assigned to their case might have that person impose a schedule which the parties would be legally compelled to follow (unless they could successfully challenge the imposed agreement in court). But, it is important to understand the difference between a neutral mediator who will not impose a decision and an arbitrator who has the agency to do so.
Does the court have to appoint a mediator?
Sometimes people arrive at mediation because a judge orders them to participate in negotiations prior to a final order. However, one doesn’t need a court order to access mediation. Many parties voluntarily engage in the mediation process in order to bring as few disputes as possible to the court. Sometimes people participate in mediation as part of a collaborative, or conciliatory, divorce process. In that case, parties try to mediate as many issues as possible to reduce the disputes brought to litigation (as well as reducing the emotional and financial costs). Look in your local area for collaborative divorce practices or search for local mediators. It’s likely both exist in your community. Your local court might make available a list of local mediators though some might exist who are not on the court’s roster.
How much does mediation cost?
Mediators sometimes require that parties pay a retainer fee prior to the beginning of mediation sessions. Once a mediator begins working with a case, they typically charge $100-300 per hour. Depending on the number of issues and their complexity, the mediation process often will include three to ten hours of the mediator’s time. Some courts have programs to help pay for mediation for people below a set income threshold. Some communities have local civil mediation programs which provide free, or low-cost, mediation services. Call your local court and do some research if you’re interested in potentially saving some of the cost related to mediation services. Although the fees associated with formal mediation might seem expensive, research has shown that mediation tends to save money overall because of the relatively higher cost of litigation.
How do attorneys fit into the mediation process?
It’s not absolutely necessary to have legal representation in order to participate in mediation, though many people do. Legal questions are common during negotiations and might need to be addressed before, or during, the mediation process. Sometimes parties bring their attorney to the mediation sessions. Otherwise, parties will need to have gotten their legal questions answered as appropriate. And, a final negotiated agreement may need to be examined by personal attorneys prior to being submitted to the court as a formal petition. Of course, having attorneys directly participate in the mediation process will increase the overall cost of the process.
Do parties have to be in the same room at the same time to negotiate?
Parties will usually meet at the same time. Sometimes a mediator will keep parties separate and travel back and forth between the two meeting spaces. This might happen in a case in which a court order prevents the parties from being together. Or, the mediator might choose to do so to lower the hostility between parties.
Will the mediation take place in one long session or multiple shorter sessions?
Sometimes mediation occurs in one long session on a single day. Other times there are one- to two-hour long sessions which take place on different days. The schedule will be up to the mediator and their preferred style. Typically mediators who are also attorneys will prefer to meet in one long session. Those who are social workers may be more flexible about how to meet. If you have a strong preference about this aspect of the mediation process, it is worth clarifying with your prospective mediator. Whether there is one long session or multiple shorter sessions, there should be breaks and it is worth clarifying the process of taking breaks with the mediator at the onset of the process. Sometimes issues being negotiated raise questions which will need to be addressed before the mediation can continue. For example, agreements that rely on outside data (how much equity exists for the home loan or how much is owed on a credit card) may need to be tabled and revisited if the information isn’t immediately available or the agreement can’t be stated in provisional terms (such as, the parties will agree to divide the credit card liability evenly).
Coparenting involves ongoing negotiation around shared parenting responsibilities. Many of these agreements will not be urgent or essential to your formal divorce decree or subsequenct orders. However, some agreements are important and emotionally and financially consequential and will be formally included in your court order. Mediation is likely to save you money as well as emotional costs and lead to lasting and mutually satisfying agreements.
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