Facing the end of your marriage can be a very stressful life transition, especially if children are involved. Deciding how to move forward with the process can add stress and confusion. Do you choose to hire an attorney and divorce through the courts or find a divorce mediator? Below are some important things to consider when picking a divorce mediator.
Picking a Divorce Mediator
Divorce mediation is a more cost effective and peaceful way than hiring an attorney for couples to transition from one household to two as their marriage ends. Through divorce mediation, couples can avoid costly, painful, lengthy court battles. The couple negotiates the settlement of all the issues involved in their divorce with the assistance of a divorce mediator. Their mediator will help facilitate settlement discussions without the traditional costly legal expenses of the divorce and custody courts.
In order for the divorce mediation process to be successful, picking a divorce mediator that is right for both of you is important. Most divorce mediators offer a consultation for all those involved to determine if the process and the mediator are the right fit for the couple.
Here are ten points you should consider in deciding if divorce mediation is the right fit for both of you and if your divorce mediator is capable of helping you both through your divorce.
1. How much does divorce mediation cost?
Divorce mediation is more cost effective because the couple will not be paying two lawyers to communicate for them but will be speaking directly to one another with the assistance of one mediator. You should ask your mediator how they charge for consultations and their services up front.
Most divorce mediators have different fee structures that allow the couple to plan for and understand exactly what the cost of their mediation will be.
Fees for divorce mediation vary depending on the complexity of the marital estate and issues at hand to be settled. After the initial consultation, the divorce mediator will quote a fee for a service that will meet the couples’ needs. If the couple wants to proceed with mediation, an agreement will be signed between the parties and the divorce mediator outlining the fee structure and the services the fee covers. The fee agreement should also cover what happens with the payment and refund of fees in the event that the mediation stops midstream either because the process stalls, one person digs in their heels or leaves the process, or the parties decide to take a break. These questions may also be raised at the initial consultation.
2. How does divorce mediation work?
This should definitely be outlined by your divorce mediator during the consultation. You should ask your divorce mediator how their mediation process works.
Generally, once the couple has retained their divorce mediator, the mediator will give the parties a list of documents and information that must be gathered. Once the information is gathered, the divorce mediator will schedule the mediation sessions to discuss the issues to be resolved.
Once agreements on all the issues have been reached, the terms and conditions of the settlement are reduced to either a memorandum of understanding which is not legally binding or a marital settlement agreement which is legally binding. The difference in these two agreements is whether or not your mediator is a licensed attorney who can prepare a legally binding settlement agreement.
The last step will be for the parties to file the final divorce paperwork with the court. Many mediators offer to assist clients with this process through their staff but the mediator will not represent them in the courts during this process.
3. How long does divorce mediation take?
A divorce mediator should be able to give you a time range for the completion of a mediation. However, generally it depends on the couples’ timeline. Generally the divorce mediation process itself takes between three to six months.
The finalization of the divorce depends on the laws of the state.
4. What are some of the benefits of divorce mediation over going through the courts?
Your divorce mediator should be able to give a long list of reasons why divorce mediation will benefit you both in the long run.
Generally, the process is much more predictable. You will have an idea when the divorce mediation process will start and end. You will have control over the possible outcomes of the mediation process.
There is no such predictability in the courts. Couples do not have control over how the courts will rule in their case even if their lawyer can give them a best case scenario.
5. Is divorce mediation legally binding?
Divorce mediators who are serving a party strictly as a mediator and who are not licensed to practice law can only draft memorandums of understanding memorializing the terms and conditions agreed upon by the couple in divorce mediations. A memorandum of understanding is not a legally binding document per se. In order to create a legally binding marital settlement agreement incorporating all the terms and conditions agreed upon as outlined in a memorandum of understanding, the couple must take the memorandum to a licensed attorney to draft a legally binding marital settlement agreement or if their mediator is a licensed attorney, the divorce mediator can serve as a drafter of the legally binding marital settlement agreement as well.
You will need to ask you mediator if they will be able to prepare your marital settlement agreement or only a memorandum of understanding.
6. Is divorce mediation the right answer for both of you?
The divorce mediator should be able to give you an idea if mediation will work for both of you after the initial consultation.
Divorce mediation is for those couples who are committed to reaching mutually agreeable and beneficial agreements within the divorce settlement negotiations. Mediation is not for those couples seeking revenge or punishment of the other party.
Divorce mediation will not be successful unless the parties are willing to compromise. Having a “my way or the highway” attitude will doom the success of any divorce mediation from the start.
7. Will divorce mediation change my relationship with my ex?
Any good divorce mediator will tell you that their goal is to improve communications between the couple for the long run. This is accomplished by the divorce mediator facilitating and modeling productive, neutralizing communications for the divorcing couple.
However, if one spouse (or both ) is violent, has severe mental health issues or severe substance abuse issues, a mediator may advise couples to seek other avenues for resolving their divorce.
8. Is divorce mediation public?
Divorce mediation sessions are private and confidential. The parties meet with the divorce mediator in the mediator’s office. The couple never has to go to the public courts to settle their divorce other than to file their final divorce paperwork which is generally sealed by the courts as well.
9. Do I still need a lawyer to represent me in mediation?
Ending a marriage is a legal process. Most divorce mediators will not encourage lawyers to attend mediation sessions. In fact some mediators prohibit their clients from having legal representation during the mediation process. However all divorce mediators recommend that their clients consult with a divorce attorney to ensure that their clients are well informed of their legal rights. In addition, clients will need a divorce attorney to either prepare or review their final marital settlement agreement.
10. Ask your divorce mediator why divorce mediation with them as your mediator will benefit you as a couple.
As you are in the process of picking a divorce mediator, you should ask during the consultation why they think mediation is the right fit for you and your spouse.
You should also ask your divorce mediator about their professional experience and their success rate with mediation cases reaching final settlement. Raise any issues or concerns you have about the possibility of success or failure in your mediation with your divorce mediator.
In the end, you are picking a divorce mediator who is right for you if you both feel a connection with the divorce mediator personally and feel confident in their ability. If you are both committed to settling your divorce in an amicable way that benefits both of you, then dive in; mediation waters can be very healing.
