While many people have heard of divorce mediation, they often have misconceptions about how it works. No one can be forced to go through mediation or accept a settlement. Divorce mediation is a voluntary process whereby the parties work with a neutral third-party mediator to negotiate a settlement. The goal is to facilitate discussions and help the parties find creative solutions that meet their needs. To this end, there are several steps in the mediation process:
Initial agreement. Both parties must agree in principle to mediate their divorce dispute. Once they do that, they should look for a mediator who has received extensive specialized training in mediation and negotiation and has particular experience in divorce mediation.
First appointment. The initial meeting with a mediator is typically 2 hours long. The discussion will go through several phases to ensure the parties understand the mediation process and are prepared for negotiations.
- Contracting phase. The mediator will begin by explaining to the couple what mediation is and the rights and responsibilities of each party in mediation. The key points emphasized are confidentiality (all parties are obligated to keep the conversations confidential), the voluntary nature of the process (either party can opt out at any time), and the role and neutrality of the mediator (the mediator does not take sides, impose a decision or give legal advice). The parties will then sign an agreement to mediate.
- Statement phase. Next, the mediator will ask the parties to explain why they are seeking mediation and what are their issues and concerns. The mediator will then summarize what each party said with the goal of developing a clear and organized statement of that party’s issues and positions.
- Information gathering phase. The mediator will continue to ask questions to flesh out the particular facts and circumstances of the dispute and the basis for the parties’ positions. During this phase, the mediator is trying to uncover the important bottom line interests of each party, so that all positions can be fully explored and understood. Further, the mediator will ask the parties to agree on the issues that need to be resolved by them.
- Brainstorming solutions phase. The parties will be encouraged to brainstorm solutions to their issues by exploring any and all options and examining the pros and cons of each option. The parties may make “offers” to the other side which can then be discussed to facilitate settlement.
Subsequent appointments. Each subsequent appointment is typically 2 hours long. Mediation often entails 3-6 sessions, but the parties are in control as to how long it will continue. Importantly, mediation does not have to resolve every dispute in the divorce. However, the more issues that can be settled with mediation, the fewer that need to go through an expensive litigation process.
Review and settlement. The mediator does not give legal advice, so it is recommended that each party has an attorney. Often a party will consult his/her attorney after each session with the mediator to discuss any legal issues and potential settlement offers. Generally, the mediator will draft memorandums after each session outlining the salient points of the discussion and detailing the parties’ decisions, if any. Once the parties have reached consensus on their issues, an attorney will be needed to draft the final settlement agreement and the other party’s attorney should review it before signing.
Court process. If the parties have settled their disputes, one of the parties can file for an uncontested divorce and submit the settlement agreement to be part of the divorce decree.
If you are considering divorce, mediation offers numerous benefits including a less costly, faster and more amicable process. In addition, it is particularly helpful when children are involved. The parties can not only successfully resolve their differences during the divorce, but mediation illustrates techniques they can use to address future conflicts between them.
Contact us today to discuss how we can help you achieve the best result in your divorce.
