How to create a divorce agreement with the help of a mediator -- without going to court.

What's Below

• What is divorce mediation?
• How does a mediator stay neutral and avoid taking sides?
• How do mediating spouses protect their legal rights?
• Does the mediator meet with both spouses together or separately?
• How much does mediation cost?
• How can a divorcing couple find a good mediator?
• Why is mediation better than going to a lawyer -- or is it?
• How long does mediation take?
• What is the difference between court-ordered mediation and private mediation?
• What is the difference between mediation and arbitration?

What is divorce mediation?

Divorce mediation is a process in which divorcing spouses negotiate an acceptable divorce agreement with the help of a neutral third party -- the mediator. The mediator assists the spouses in negotiating but doesn't make any decisions for them.

How does a mediator stay neutral and avoid taking sides?

Because the mediator won't be making decisions for the divorcing couple, he or she doesn't need to decide who's right or wrong. Not only that, it is the mediator's job to help the spouses come up with an agreement that is acceptable to both parties, so the mediator makes a point of looking at the issues from both sides. Mediators who have been professionally trained have learned techniques for doing this.

How do mediating spouses protect their legal rights?

Because divorce involves legal questions, every divorcing spouse should know and understand his or her legal rights before agreeing to a settlement. Spouses who mediate are no exception. One way for a mediating spouse to do this is to work with a consulting lawyer who knows and understands mediation. Doing some independent legal research is another option. It's best to do this as early in the process as possible, then follow up with a legal review before signing the settlement agreement.

Does the mediator meet with both spouses together or separately?

Some mediators prefer to work separately with each spouse, acting as a go-between most or all of the time. Others favor joint meetings at which both spouses are present. There can be advantages and disadvantages to both approaches, depending on the circumstances of the particular couple. This is a question that divorcing spouses should address in advance with a potential mediator.

How much does mediation cost?

Most mediations involve an hourly or per-session fee except for those that are ordered by a court or conducted through a community-based mediation agency. These agencies may provide mediation at no cost. The amount of time or number of sessions needed to gather information and negotiate an agreement will vary from couple to couple, so the cost of the mediation will also vary. Mediation, however, will always be much less costly than adversarial litigation.

How can a divorcing couple find a good mediator?

Personal referrals are usually the best way to find any professional, including a mediator. Because mediation is a relatively new field, personal referrals may not be possible. In that case, divorcing couples may need to do a little research. Using Divorce Mediation (Nolo) includes a chapter on locating a mediator and another chapter on using the first session to evaluate the mediator.

Why is mediation better than going to a lawyer -- or is it?

Using mediation to negotiate a divorce agreement is almost always going to take less time, be less expensive, and result in a more solid agreement than using a lawyer to take the same case through the courts. For some couples, however, negotiating directly with each other, even with the help of a mediator, is not possible -- either because of problems in the relationship such as domestic violence or substance abuse, or because a spouse is unwilling to mediate. Using a lawyer, however, doesn't necessarily rule out mediation; many mediating spouses find it helpful to work with a consulting lawyer who can offer legal advice and assistance with the mediation and who can review the settlement agreement before it is signed.

How long does mediation take?

Mediation almost always takes less time than litigation. Depending on the issues, it can even take place in one day, although most divorcing couples meet for several sessions on separate days over a period of days or weeks or months.

What is the difference between court-ordered mediation and private mediation?

As its name implies, court-ordered mediation is conducted under the sponsorship of a court. It usually involves only child custody and visitation issues. Rarely are financial issues addressed in court-ordered mediation. There is often no fee charged for court-ordered mediation, whereas private mediators usually charge an hourly or per-session fee. The mediator in a court-sponsored program often makes a report to the court. Private mediation is usually confidential.

What is the difference between mediation and arbitration?

Both mediation and arbitration involve a neutral third party who is not a judge. In mediation, the neutral party -- the mediator -- helps the spouses to negotiate an agreement and has no power to make decisions. In arbitration, the neutral third party -- the arbitrator -- listens to the facts and then decides the case.