Divorce mediation is a process in which two people who have made the decision to separate or divorce meet with a neutral mediator to negotiate the terms of their separation or divorce. It is appropriate for married couples, same-sex partners, or any couples who have been in a committed relationship that has involved shared financial resources or parenting. Success in mediation does not depend on the partners being friendly or even liking each other. Very angry couples can mediate. Success depends on a willingness to settle and to make a fair plan. Contraindications to mediation include domestic violence, impaired judgment due to active substance abuse or mental illness, and a history of dishonest or illegal behavior.
The traditional alternative to mediation for married couples is an adversarial legal system in which each partner hires an attorney to negotiate for them. The attorney must zealously represent his or her client, which can lead to an emotionally and financially costly battle. Mediation was developed as an alternative that allows partners to stay in control of their process, the results of which will affect their lives for years to come. The legal system does not provide any alternative for same-sex couples or live-in partners.
Divorce mediation is a structured process. once partners have agreed to explore mediation, an initial appointment can be scheduled. The primary goal of this appointment is to learn about the mediation process and come to an agreement about whether or not to proceed with mediation. once a decision is made to mediate the partners will be asked to sign a mediation agreement that identifies the rules that govern the mediation process. While each mediator designs his or her own agreement, the following are usually included:
- The cost of mediation, which is shared by the parties, is stated.
- The mediator will not act as an attorney or represent either of the parties. The parties are advised to retain separate counsel to act as their consultants during the mediation process.
- The parties may not dispose of any joint assets without prior agreement.
- The parties agree to full disclosure.
- The parties agree not to take legal action during the mediation.
- The mediation process is confidential and should the parties find themselves in litigation they may not call the mediator or his or her records into that litigation.
- At the conclusion of the mediation, the mediator will write a memorandum of understanding detailing all of the agreements.
At the conclusion of the initial session, the partners and the mediator set an agenda for the negotiations. items on the agenda include developing a childcare plan, division of assets, division of personal property, and monthly support. A childcare plan involves making decisions about custody of the children, where the children will live, and how each parent will be spending time with the children. It can also include how decisions such as schooling, discipline, enrichment, and medical care will be made. In addition, decisions about how the parents will share in the financial support of the children will be made. Many states have guidelines for setting child support amounts. Because parents are in control of developing a childcare plan, they can adapt the plan to meet the unique needs of their children in a way that attorneys or the court could never do.
Most mediators will have forms for the parties to fill out that will list all of their assets and debts and their income and expenses. To ensure full disclosure, documentation for all assets, debts, and income will need to be provided. A plan is developed to equitably share available resources to maximize each partner’s ability to get on with their lives. At the conclusion of the mediation, the mediator will write a memorandum of understanding. If the parties have retained counsel, they will each be given two copies; one for themselves and one for their attorney. This is not a legal document so it will have to be implemented into a formal separation agreement and filed with the court.
The critical role of the mediator is to facilitate the negotiations. This requires that they help develop options, consider the consequences of their choices, balance the power, ensure that no party agrees to anything they feel intimidated into or that they do not understand, and help to unblock impasses. The agreements are the couples’ agreements not the mediator’s who does not act as an arbitrator or a judge but as a neutral facilitator guiding a couple through the painful process of ending a relationship.
Divorce mediators can have an advanced degree in a mental health field or be an attorney. They should have at least 40 hours of mediation training. Mediators are not licensed as yet but local courts often have referral lists as does the Association for Conflict Resolution.