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What Is Divorce Mediation – Tips & Process Checklist

By Mary McCoy

mediationThe dissolution of a marriage is an emotionally painful experience. The last thing you want to do is add financial troubles and complicated legal wrangling to the mix. Between attorneys’ fees and the expenses that come with splitting one home into two, too many divorces result in an obliteration of assets and tie up future earnings in the process.

However, if you believe you can work with your spouse toward an amicable split, you may find in divorce mediation an effective alternative to a traditional litigious proceeding. It can reduce the financial and emotional impact of divorce on you, your ex, and your children.

What Is Divorce Mediation?

According to the legal information website Nolo, divorce mediation is “a process in which divorcing spouses try to negotiate an acceptable divorce agreement with the help of a neutral third party: the mediator. The mediator helps the spouses to negotiate and communicate but doesn’t make decisions for them.”

The assumption that drives mediation is that divorcing spouses – even when they have irreconcilable differences – understand their situation more clearly and can make better individual decisions on their family’s behalf than the court system can. A mediation can prevent couples from viewing the divorce in terms of “winning” or “losing” a battle, and instead see it as an opportunity for a fresh start, which is especially important if children are part of the equation.

The Involvement of a Mediator in Negotiations

Couples tend not to consider divorce until communication and trust are deeply broken. Once a relationship has devolved to the point of separation, it’s unlikely that a couple can communicate effectively about their marriage’s dissolution. However, communication is necessary to divide the family’s assets and protect the well-being of any children. A divorce mediator is a neutral party who helps oversee and facilitate communication between spouses in the hopes of conducting productive proceedings.

Mediators make sure that divorcing spouses can communicate with one another without fear of interruption, blaming, name-calling, or misunderstanding. They provide an outline of the issues that need to be addressed and ensure that all are covered prior to the final agreement being drafted. Ultimately, this agreement is the result of thoughtful deliberation. Mediators provide guidance, access to legal information, and assistance in brainstorming for solutions when inevitable conflicts between spouses arise during the process.

Typical Mediation Sessions

Sessions are typically one or two hours long, although some mediators block out full or half-days to assist couples with  their agreements from start to finish. The mediator helps develop an agenda for each meeting, and ensures that the spouses stick to it and communicate clearly and effectively with one another. Agenda items include custody questions, assets, debts, and any other concerns typical of divorce.

Divorce Proceedings Through a Mediator

After each agenda item is adequately addressed and a compromise is reached, the mediator drafts a divorce agreement, generally with the help of a lawyer – unless your mediator is a lawyer. The couple can then review it, either on their own or through an attorney. Papers are then filed in court and the process is brought to a quick close.

Cost Comparison

Although some divorces are better suited for mediation than others, it’s hard to deny the financial benefits when compared to litigation. According to Mediate.com, the average litigious divorce in the United States costs $15,000, and the average mediated divorce runs approximately $3,000. However, these projected costs vary a great deal, depending mainly on the state and city you call home. For instance, mediation in Texas is often only $100 per hour, but in California hovers closer to $300 per hour.

This variation is due in part to differing local norms about the profession. In Texas, mediators are about as likely to hail from social work as they are from law, which drives down the average cost per hour. In California, on the other hand, many practicing mediators are also lawyers, which tends to drive the price up. Regardless of your location, you’re looking at a much lower bottom line for mediation than you are for a litigated divorce.

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Advantages of Mediation

Of course, divorce mediation doesn’t work in every situation. Like anything, it has its benefits and drawbacks, meaning you need to consider many variables before deciding whether it’s the best option for you, your ex, and your family.

Mediation can benefit you in the following ways:

  1. Reduces the Emotional Toll of Divorce. Even when a divorce is necessary for the overall well-being of family members, the emotional costs are high. Splitting up means the end of any notion of a future together, and divorce proceedings can add additional betrayals and hurt on top of that. When approached as a legal competition, animosity is ripe to grow between spouses, and in children. Mediation can mitigate that animosity.
  2. Reduces the Financial Costs of Divorce. A dear friend of mine recently made the difficult decision to seek out a divorce in the state of Texas. She called several lawyers and found that the minimum cost for legal representation in an uncontested divorce in her area was $2,000. If her husband was willing to work with her, they could share that $2,000 bill. If he was unwilling and contested the divorce, the cost per lawyer would have been closer to $3,500, on the bottom end. My friend was looking at a minimum of $2,000 and a maximum approaching $10,000, which she simply could not afford. Then she discovered mediation. She found that she could file her own divorce paperwork at the county court for $350 and hire a mediator for a half-day for $400. The total cost of her divorce dropped from over $2,000 to $750 with the help of a mediator.
  3. Improves Communication Between Ex-spouses. The end of a marriage doesn’t signal the end of communication between spouses. If children are involved, parents need to be able to communicate and work together for the long haul. The mediation process creates a framework for future co-parenting in which ex-spouses learn to communicate clearly and non-competitively for the benefit of their kids.
  4. Reduces the Length of Divorce Proceedings. According to Mediate.com, the average length of litigious divorce proceedings in the United States is about 18 months. The average length of a mediated divorce is closer to 90 days. Although uncontested divorces can be relatively short, a contested divorce with legal representation on both sides can drag on for years. Many mediators can help couples develop their own agreements in just a few short sessions. After the paperwork is filed with the court, the divorce is done.

Disadvantages of Mediation

Mediation is obviously a great alternative to a litigious divorce when both parties go about the proceedings reasonably. There are instances, however, when mediation can be inappropriate or ineffective:

  1. Violent Situations. Not all divorces are amicable. In any situation where a spouse has experienced emotional or physical abuse, mediation is not recommended. Even though a litigious divorce is more emotionally taxing and more costly, the safety of both parties is always of utmost importance. An abused spouse needs to hire a lawyer to ensure physical, emotional, and financial protection throughout the proceedings.
  2. Addiction Issues. Sadly, addiction is a leading cause of divorce in the United States. One of the great tragedies of addiction is the way it impairs judgment and reason. If a spouse has an addiction, it may be impossible to compromise effectively on the terms of a divorce, even with the help of a skilled mediator.
  3. Both Partners Can’t Agree. Mediation only works if both spouses are committed to the process. Couples can successfully mediate even if they don’t get along, but they must be willing to keep lines of communication open, disclose all pertinent information, and compromise with one another throughout the mediation sessions. If either spouse is unwilling to communicate honestly, it’s just not a viable option. Of course, that doesn’t mean husband and wife have to like each other – it simply means they must both believe that mediation can ultimately serve the family better than a courtroom battle can.
  4. The Risk of Increased Costs. If a couple tries mediation and fails – requiring them to hire lawyers instead – the cost of divorce increases substantially because of the money already lost on the mediator.

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How to Find a High-Quality Divorce Mediator

Unlike lawyers or couples’ counselors, divorce mediators do not need a license to practice their profession, except in the District of Columbia. The qualifications of divorce mediators vary widely because most arrive at the profession with different skill sets and backgrounds. Unfortunately, this can make finding a capable, trustworthy mediator challenging.

Some mediators are practicing lawyers. Some are licensed in social work or counseling. Those with law degrees tend to charge more, but can offer insight into legally complex matters. Social workers or counselors charge less, but may not be able to guide you through the legal labyrinth as capably. Any mediators lacking either of these licenses may not be your best options – but even within these subsets, understand that experience and professionalism do vary.

Start your search for a mediator by asking your personal contacts for recommendations. Reach out to your county bar association or request referral information from a marriage or family counselor. If that doesn’t yield any fruit, try an Internet search. It may not be ideal, but reviews and testimonials can help paint a good picture of any candidates.

Once you find a mediator you feel you can trust, ask the following questions:

  1. How Much Training Do You Have? Divorce mediators should have significant training before practicing on their own. Look for a mediator with at least 60 hours of training.
  2. What Is Your Educational Background? Your best bet is to find a mediator with graduate-level qualifications in mental health or law. Even though they don’t have to be certified to specifically practice mediation, look for these other certifications to ensure you’ve hired a quality professional.
  3. How Many Divorces Have You Mediated? Even though mediators aren’t there to provide you with legal advice, they need to have sound working knowledge of all laws associated with divorce. Practice makes perfect, so make sure you hire someone with experience.
  4. Are You Familiar With ABA Standards? The American Bar Association published a paper called Model Standards of Practice for Family and Divorce Mediation, which provides guiding principles for divorce mediators across the United States. Whoever you hire should have a good understanding of this paper’s contents and a commitment to follow its standards.

Final Word

Divorce is always challenging, but it doesn’t have to have devastating financial and emotional consequences. If you’re able, find a way to agree with your spouse on fair and amicable divorce terms. A mediator can help you salvage a difficult situation and ensure that you, your ex, and your kids don’t have to pay for the fallout for years to come.

What is your opinion regarding divorce mediation?

Mary McCoy
Mary McCoy, LMSW is a licensed social worker who works closely with individuals, families, and organizations in crisis. She knows first-hand how financial choices can prevent and mitigate crises, and she's therefore passionate about equipping people with the information they need to make solid financial decisions for themselves and their loved ones. When Mary isn't on her soap box, you can find her hiking, jogging, yoga-ing, or frolicking with her family.

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