Mediation, also referred to as "alternative dispute resolution," allows the spouses to resolve the issues themselves rather than have the court resolve the issues. The mediator does not decide issues; she simply facilitates a process that allows the spouses to create their own settlement agreement. A settlement agreement reached during mediation is referred to as a "mediated settlement agreement" or MSA.
In some cases, the spouses choose mediation as the sole method of determining property, maintenance and custody issues. After a successful mediation, a marital settlement agreement can be created and filed with the petition for divorce. In most instances, however, mediation occurs because the court has ordered it after a divorce has been filed. Laws in some states require the court to order mediation before a final divorce decree is entered. When mediation is ordered, the parties must attend and attempt to resolve their differences in good faith.
SIDEBAR: Divorcing spouses can agree to go to arbitration. Unlike the mediator, the arbitrator does make the final decision on the issues in dispute. Arbitration has been likened to a mini-trial and like a judge, the arbitrator’s decision is generally binding on the parties (unless they agreed otherwise.)
Is mediation required by law before a divorce will be granted?
In some states. In others, mediation is ordered by the court if the parties request it or as part of the judge’s selected procedure.
CAUTION: Once mediation is ordered, you must attend.
SIDEBAR: In cases where there is family violence or domestic abuse, mediation typically cannot be ordered.
Who picks the mediator?
Both parties must agree on the mediator. If the mediation process is court ordered and no person is acceptable to both spouses, the court will appoint a mediator.
TIP: Once the court appoints a mediator, you must use that person and pay their fee. However, by choosing your own mediator, you have the ability to control the expense.
What requirements should our mediator have?
In some states, mediators may be required to obtain a license. However, most states do not require licensing and anyone "can hang out their shingle" advertising his mediating services. It is important that the mediator you choose:
- be trained in mediation;
- have experience in divorce mediation (at least 10 prior mediations); and
- a working knowledge of family law in your state.
How long does mediation take?
Typically the parties spend most the day resolving their differences and putting the agreements in written form.
SIDEBAR: Some mediators practice ongoing mediation with divorcing spouses where the parties attend mediation meetings on a regular weekly basis until a settlement is worked out.
TIP: If you and your spouse agree that a divorce is inevitable, consider hiring a mediator from the outset to help negotiate the entire process. The divorce will be much friendlier if the two of you "mediate" the fact that one of you must move out, rather than having one person feel as if they were forced to leave.
Is the mediator a lawyer?
Not always. Some mediators are retired judges; others are therapists, religious leaders and sometimes accountants.
Can the mediator give me legal advice?
No. Only your attorney can you give you legal advice.
How much does it cost to use a mediator?
The mediator usually bills by the hour. The fee can be anywhere from $50 - $250 an hour or more.
TIP: A lawyer or retired judge will be on the high end of mediation fees.
What is a mediation agreement?
A mediation agreement is the contract that all of the participants sign before mediation begins. The agreement sets the ground rules for the mediation, such as the maximum length the parties can be required to mediate with each other. The agreement also includes a confidentiality clause prohibiting the parties from revealing to third parties what was said during mediation.
Can I refuse to sign the mediation agreement?
Yes. You cannot be forced to sign the agreement even if you previously consented to its terms. However, once you do sign the agreement, or some variation of it, you are contractually bound by it.
Who attends the mediation?
The spouses and their attorneys, if they have attorneys, participate in the mediation. While children of the marriage can be involved, especially when they are old enough to voice an opinion, they usually are not present.
Can I bring my best friend to the mediation as moral support?
No. Because the discussions during the course of mediation are confidential settlement talks, outside parties will not be allowed to attend or participate in the mediation.
If we have successfully mediated, do we still have to go to court?
Yes. A divorce is a legal decree. You must file a lawsuit in order to obtain a final decree of divorce, or you remain married.
TIP: Since all the issues have been resolved where there is a mediation settlement agreement, the divorce is uncontested, and it will be granted as soon as the waiting period has passed.
Can the mediator represent me in court?
No. Only a licensed attorney, or you yourself, may represent you in court. If you are handling the divorce, the mediator can advise you and attend court proceedings, but she cannot speak to the judge on your behalf.
Can what we say during mediation be used at a trial or hearing before the judge?
No. Settlement talks are confidential and cannot be used later as evidence in court.
SIDEBAR: The signed agreement may be presented to the court if one of the parties is refusing to abide by its terms.
If the court orders mediation, do we have to enter into a settlement agreement?
No. You always have the option to litigate your differences before the judge or jury.
Can I withdraw my consent to an agreement reached in mediation?
Yes. However, if you signed an agreement, your spouse can attempt to enforce the agreement as a contract between the two of you. The judge may be inclined to grant a divorce decree based on the terms of the signed agreement because of your consent.
TIP: Some mediation agreements include a provision that they are binding and cannot be revoked once signed. If you sign such an agreement, it is likely the court will enforce it and make it part of the final decree over your objections.
My spouse lied about her assets during mediation. Can the agreement we reached and filed with the court be set aside?
Yes. Agreements that are reached because of fraud, such as your wife’s failure to disclose assets, will be set aside by the court.
The last revision date for this article was November 1, 2011.