If You Choose Mediation
How to Divorce
Tip: Even if you can’t resolve everything through mediation, you can limit what is left for the courts to decide.
In divorce mediation, a neutral facilitator will help you and your spouse discuss needs and wants. The goal is to reach a mutually acceptable agreement without going to trial. The process is confidential. Do not assume the mediator, who may or may not be a lawyer, has any legal knowledge. In some states, mediation is unregulated and without any required standards or training.
Mediation is usually less expensive than a trial, preferred by judges, more satisfactory to the parties and fosters higher compliance. Women, however, are considerably less pleased with mediated divorce settlements than are men, because in most marriages women hold less of the money and power. Mediation requires a sensitive mediator, reasonable parties, good faith bargaining and compromise.
If you are a woman, make sure the mediator you choose is sensitive to the gender imbalance in money and power and makes an effort to safeguard a woman’s rights. Ask where the mediator stands on shared parenting, which can be a disadvantage to women. Association for Conflict Resolution provides a referral service of members who practice in the areas of family and divorce mediation and who have met the Academy’s training and experience requirements.
Little has been written on the advantages of arbitration, but mediation is usually less expensive than a trial, preferred by judges, more satisfactory to the parties and fosters higher compliance. People are less satisfied with mediation when required to use it. If your spouse is physically, emotionally, sexually or verbally abusive, meditation is not recommended and should be avoided.
Lawyers retained solely to review mediated agreements may not scrutinize them as closely as settlements they negotiated. In addition, mediated settlements can be harder to alter than a court judgement if you are dissatisfied.
Before hiring a mediator, find out:
- Background, education and training
- Experience in mediating disputes similar to yours
- Fees charged and how divided
- Membership in professional associations
- Certification (available only in certain states)
When the court requires mediation, opposing it outright could annoy a judge or make you seem uncooperative. If you want to avoid it, here are your options:
- If worried about your safety, ask the mediator to do “shuttle” mediation, meeting separately with you and your spouse on separate days.
- Object on grounds that a full and fair disclosure of financial assets or income has not occurred.
- If a domestic violence victim, have your attorney or a battered woman’s advocate explain that you are afraid of mediation and do not believe it will work and ask the mediator to find the case inappropriate for mediation.
- Formally object to mediation by motion on the ground that it is not safe for you as a person abused by your spouse and ask the judge to excuse you from mediation.
- File a motion objecting to mediation on constitutional grounds—that it denies to your constitutional right to counsel, interferes with your right to associate with your attorney or NOT to associate with your spouse, discriminates against you as a woman and denies your right to resolve disputes in the courts.
- Go to mediation but do not participate unless having agreed, preferably in writing, that if the mediation is unsuccessful the mediator will not make any recommendations or communicate anything said in mediation to the court except for threats of violence.