It’s hard enough to navigate the emotional stress, uncertainty about the future and, sometimes, worry about children that a divorce causes. Add a drawn-out, expensive legal process, and it can be enough to make someone feel like it’s easier to stay in an unhappy (or even unsafe) marriage.
That doesn’t have to be the case. If you’re seeking a faster, more affordable and less traumatic way to navigate your divorce, you may want to consider divorce mediation.
What is divorce mediation?
Divorce mediation is a process during which participating spouses meet with a trained, neutral mediator in an informal setting in order to settle the issues of their divorce out of court.
The goal of a mediator is to address each party’s needs and concerns in order to help them reach an agreement and end their marriage as peacefully as possible.
Mediation sessions often happen in a mediator’s office, and they can also take place online. The mediator helps the spouses negotiate issues such as child support and the division of property. The mediator also prepares the settlement agreement based on the issues discussed and agreed upon.
With a prepared settlement agreement, couples can file for an uncontested divorce. Since everything is agreed upon in advance, these types of divorces are often fast-tracked by the court, allowing judges to finalize the divorce in a few months. Ultimately, the divorce mediation success rate is very high, with some estimates placing it between 80 and 90 percent.
The divorce mediation process
During the pre-mediation stage, the couple talks with a neutral mediator (or an assistant), providing relevant background information about their marriage, family and the divorce.
This process often includes filling out a questionnaire or writing a mediation statement that outlines the relevant issues to be resolved. It’s also common to sign a confidentiality agreement at this stage.
During mediation, the mediator gives each side the opportunity to speak about their situation.
Unlike divorce court, divorce mediation sessions are casual and informal. The mediator usually asks additional questions for clarification, ensuring they have a proper understanding of the situation.
Next, the mediator addresses the issues on which both sides do and don’t agree, facilitating communication in order to identify possible solutions for any disagreements.
If children are involved, the mediator works with the parties to find a parenting solution that takes the needs and best interests of the children into account.
Regarding finances, it’s important for both parties to fully disclose their financial status, openly and honestly, in order to reach a fair agreement.
Since the mediator is neither a judge nor an arbitrator, they don’t make any decisions regarding the outcome of the divorce. Instead, their job is to help the parties find solutions and reach an agreement that’s satisfactory to both sides.
Once negotiations are complete, the mediator writes an agreement that includes the topics resolved during mediation. If the court approves the agreement, it becomes part of the final divorce decree.
How long does divorce mediation take?
The length of divorce mediation depends on the complexity of the issues at hand and the ability of both sides to reach a compromise. Though every case is different, the average divorce mediation takes one to six months to complete.
How much does divorce mediation cost?
The cost of a divorce mediation varies depending on the mediator’s background. (Divorce mediators come from a variety of fields, including law, finance, psychotherapy and religion.) Generally speaking, mediation costs typically range from $150 to $500 per hour, adding up to $3,500 to $15,000 for highly complex cases. With Marble, however, rather than an hourly rate, you pay one flat fee for representation at mediation, plus the cost of the mediator.
This is in contrast to the national average of $15,000 to $20,000 for a litigated divorce in the United States. But, depending on the specifics of the case, a litigated divorce can cost as much as nearly $250,000.
What is the difference between mediation and collaborative divorce?
Divorce mediation is fairly similar to another alternative dispute resolution process called collaborative divorce. However, while both processes use independent parties to help the parties reach a resolution out of court, there are important differences between the two.
- Experts involved: In mediation, couples work with a single mediator on a level playing field. In collaborative divorce, each party hires their own attorney and often other professionals such as financial experts, custody specialists, therapists and divorce coaches.
- Mediators vs lawyers: While mediators are neutral third parties who don’t take sides, collaborative lawyers can only represent one spouse. Mediators strive to support the couple in making their own decisions. Collaborative divorce lawyers give advice and guidance that benefit their respective clients.
- Time: A collaborative divorce often takes longer than divorce mediation, with resolutions often taking up to four to six sessions and eight to 14 months to complete. This means that collaborative divorce is typically more expensive than divorce mediation.
What is the difference between mediation and litigation?
The processes of divorce mediation and litigated divorce are quite different. While the exact litigation process varies based on jurisdiction, it’s generally more complex and drawn out than mediation. Litigation in most states is based on contested issues and arguments and can take up to 18 months or even two years.
In litigation, each spouse may hire and work with an attorney who helps them prepare their case in advance of a court date. The parties then go to trial, where each side presents documents and evidence to the family law court to argue their position. Witnesses and/or outside experts may be called to testify in front of a judge, who ultimately decides the outcome of the divorce and issues such as child custody, child support, alimony and division of marital property.
Divorce mediation essentially skips all of these steps, with the couple working together to settle and resolve issues outside of court.
What is the role of a lawyer in mediation?
Divorce mediation doesn’t require the use of a lawyer. However, you may choose to hire one as an advocate. With their knowledge, an attorney can help move things in the direction of your wishes. If you and your partner have trouble finding an agreement, they can suggest options for settlement and help you weigh the risk of not settling versus accepting terms that may not be completely ideal.
A lawyer can also help:
- Review written agreements to ensure they’re accurate and legally binding
- Draft the final agreement
- Submit the final agreement to the court
Note that lawyers aren’t allowed in court-ordered custody mediation in some jurisdictions.
The pros of divorce mediation
The number one advantage of divorce mediation is that you get to decide your (and your kids’) future, rather than leaving that decision up to a judge who doesn’t know you. Other advantages include:
- Reducing (or completely eliminating) the number of issues that need to be resolved in court. Since you do the work in mediation and reach agreeable solutions, there’s no need for a judge to resolve conflicts for you.
- Costing less than a traditional divorce. Mediation is usually a faster, more efficient process than litigation, which is often drawn out and, as a result, far more expensive.
- Reducing emotional trauma for all parties involved. By giving both parties the ability to resolve any issues themselves, mediation tends to reduce feelings of anger, helplessness and despair often experienced during divorce litigation.
- Offering guidance for resolving issues related to divorce. Court litigation effectively takes the decisions out of the hands of the divorcing parties. Mediation gives them the tools to reach the decisions themselves.
- Taking less time than a litigated divorce. Litigation is often a long, drawn-out and stressful process, dependent on the court’s schedule. Mediation tends to be quicker and more efficient.
- More privacy. While most court records are public record (meaning the public can access them), there’s generally no record of a mediation process.
The cons of divorce mediation
Although divorce mediation has benefits, it’s not the best choice for everybody. Some possible disadvantages worth noting include:
- If a divorce mediator isn’t a lawyer, no attorney-client privilege exists.
- Divorce mediators can’t give legal advice.
- Mediation isn’t always the cheapest possible path to divorce.
- Divorce mediation isn’t suitable for couples who have an imbalance of power or a history of domestic violence.
- Couples who have difficulty communicating and compromising may not succeed with mediation.
Talk to a divorce attorney
If you’re considering mediation for your divorce, a good first step is to speak to an experienced domestic attorney. They can review the circumstances of your case and help you decide whether mediation is the best option for you or if litigation or collaborative divorce might be more suitable. If the attorney recommends mediation, they should be able to help you find the best mediator and begin the divorce mediation process.
Remember, the ultimate goal of divorce mediation is to help you get through the divorce process quickly, smoothly and with minimal stress, at a reasonable cost to you and your family. If you believe it may work for you, it’s an advantageous option worth considering.
Sofie is a writer. She lives in Brooklyn.
