In recent years, the high cost of divorce has driven many couples to try divorce mediation. Divorce mediation is a process by which an impartial professional mediator, through a series of meetings, seeks to assist the parties in resolving the major outstanding issues in their divorce, thereby moving them towards a fair resolution to their divorce. Those who have relatively uncomplicated divorces, who are seeking to reduce the costs of their divorce, and who are able to negotiate relatively fairly and amicably in the presence of an impartial third party are appropriate candidates for a mediation divorce settlement.
For those whose divorce lends itself easily to mediation, the advantages of attempting to resolve their case via mediation are many. In addition to cutting down considerably on attorney fees and court costs, simply removing a divorce from the litigious atmosphere of the courthouse to the impartial confines of a mediator’s office can go a long way towards helping the parties resolve their differences. In addition, because a mediator seeks to have the parties agree on how best to craft their divorce decree, the parties are free to consider a variety of resolutions that a court would hesitate to impose.
There are, however, situations in which mediation is not appropriate. Because the balance of power must be relatively equal in order for mediation to work properly, parties whose backgrounds include a history of domestic violence or one spouse exerting power and control over the other are not good candidates for mediation. In addition, those with extremely complicated financial estates or highly contested custody battles may have difficulty finding a mediator with the appropriate level of expertise to effectively resolve the major obstacles facing the parties.
Judges and attorneys usually maintain a list of mediators whom they have found to be helpful to other parties in settling divorces. In order to make sure the mediation is impartial, both attorneys should agree to use a specific mediator and an order sending the parties to mediation should be entered with the court. Ideally, both parties would speak with the mediator alone prior to meeting the first time to ensure that each is comfortable with the chosen mediator.
Often, mediators are family law attorneys who are familiar with dozens of different ways to legally resolve any given situation. Many states require divorce mediators to be certified, which means that they have taken continuing legal education courses dealing specifically with the legal, financial, and emotional implications of mediation. In cases where custody and visitation is at issue, the parties may wish to use a mediator who is a licensed social-worker, psychologist, or psychiatrist, as such professionals will be better able to advise the parties of solutions that are in the best interests of the children.
When a couple enters into mediation voluntarily, it is most desirable to use a private mediator if they have the financial ability to do so. Though mediators often charge as much per hour as an attorney, they can drastically reduce the time, money, and emotional strife expended in a divorce. Paying a few thousand dollars to a mediator can literally save tens of thousands of dollars in attorney’s fees. Additionally, private mediators may be able to spend much more time helping a given set of parties resolve their issues, as they typically have fewer clients than court-connected mediators. Finally, there is often a wait of a few weeks or months before court-connected mediators can meet with the parties, while a private mediator with fewer cases may be able to see a couple within a few days.
For those who are unable or unwilling to absorb the cost of a private mediator, many courthouses now have court-connected mediators. Typically, court-connected mediators are court employees (often social workers) who have offices in the courthouse itself. Court-connected mediators are usually free of charge and often as experienced and talented at resolving divorce dispute as their private counterparts. However, as more and more court systems require parties to attempt mediation early on in a divorce, court-connected mediators can often be less available than private mediators due to their large caseloads. There is sometimes a wait of weeks or months before an appointment with a court-connected mediator is available and the parties may be limited to a certain number of mediation sessions. Additionally, court-connected mediators can sometimes be restricted by court order to address only certain issues, such as child custody and visitation or property distribution and child support.
Once the parties have selected a mediator and a mediation order has been entered by the court, the mediator will usually contact the parties by telephone to introduce him or herself. During this conversation, the mediator will generally ask the parties which issues they would like to resolve, their respective positions on those issues, and advise the parties as what documents they should bring with to mediation. Additionally, the mediator may send the parties a questionnaire to fill out regarding their personal and financial information. At this point, the attorneys will usually step away and the divorce will enter a holding pattern while the parties attempt to settle. Generally, mediations are not binding and the mediator does not make recommendations to the court. After the mediation has concluded, the mediator will report one of three things to the parties’ attorneys: 1) that the parties have reached an agreement and are ready to have it memorialized in a divorce decree; 2) that the parties have reached an agreement on some issues but not others, or 3) that the parties were unable to reach an agreement.