Mediation is used regularly in divorce cases. Mediation is a form of alternative dispute resolution, so it is used as a method to resolve disputes through settlement. It is noteworthy that 98% of all divorce cases end up settled out of court, so the chances of doing something other than a trial to complete your divorce case is very high. This means that only 2% of divorce cases are going to trial.
Mediation won’t happen in every divorce case, and there’s certainly divorces where it’s not needed. So in some divorce cases you might be able to reach an agreement without even going to mediation. It is quite possible you will settle your divorce even before mediation. Some people have an agreement on basically everything at the very beginning of a divorce, and they would not need mediation. But mediation can be part of the process, and you may get to a point where a court could require you to do mediation and so mediation can be part of your process.
It’s best to look at the anatomy of a divorce case to see where mediation fits into the process. In general, if you’re looking at how a divorce case proceeds, after you file for divorce, and you get your spouse served with papers, then they have 21-28 days to respond. So there are those first two months where there’s not a lot happening yet. During this initial stage of the divorce case, there’s a requirement to complete and exchange a verified financial information form. Once you have exchanged some initial financial information, and completed a full disclosure of assets and liabilities, you are in a position to start looking at a settlement. Whatever it might be, we want to take a look at what we agree on first. Where you agree is always a good place to start. We want to narrow it down from there, but if you get to a point where there are some things that you just don’t agree on, you would look at doing mediation.
Mediation normally is going to involve hiring an attorney, so you hire someone who works as a private attorney, and does mediation. Depending on the type of mediation, you might also have a mediator who is not an attorney. Especially if they only disagreements involve children and child related issues such as custody and parenting time, a non attorney might make sense as a mediator. The majority of mediators, however, are lawyers, and work independent of both parties. They are a neutral third party, hired to help settle the divorce case. There are some that only do mediation and there are mediators who do some mediation and handle some divorce cases themselves. Typically a mediator is trained to conduct mediation, and there are classes they take, training they have, and that’s the type of person you want. So between your attorney and your wife’s attorney, they agree on who they’re going to use as a mediator and then you get that scheduled. At that point you would work with your attorney to get prepared for mediation.
You want to make sure you narrow down the issues. Step one: you want to look at what you agree on and what you disagree on. Step two is looking at the values of things. If there’s a house, we want to make sure that either we agree on the value or we have an appraisal, if there’s a mortgage we want to have that document and mortgage balance with us. If there’s a plan for one of you to keep the house, refinance, or remove your spouse from the mortgage, we want to have that information ready. We want statements on current balances, what type of account it is, if there’s savings or investments. If there are discussions of something possibly being pre-marital property or separate property as opposed to marital property, we want to be ready for those discussions. We want to know what the debts are, how much we owe, who’s in the debt, we want to know who is responsible.
We will want to prepare a mediation statement, a document that tells your story, and lists and discusses the assets and liabilities, and your position on those accounts. And also a discussion involving any other issues in your divorce case, such as child related issues and spousal support. You want to submit that to the mediator ahead of time, now they have a summary, on exactly what’s going on with your particular divorce case and what to expect ahead of time.
Then comes a day of mediation where the mediator goes over things with you, your attorney, your wife, and her attorney. They then help narrow down what the issues are. If there’s a dispute about who’s going to keep the house, the mediator will review the pros and cons of that with you and what that’s going to look like. If there’s a dispute about how much child support should be, they will help you run some numbers. If there’s a dispute about parenting time, they give you some ideas and they hear you out and do what they can to help sort all that out. That’s how things will go with all issues in dispute in your divorce case. The mediator does not make decisions, and they do not have any authority to decide things for you, so they’re just listening to you and your wife, and try to get you to reach an agreement. This is usually done with you and your wife in separate rooms, and the mediator going between these two rooms for discussion. This is what is known as “shuttle diplomacy.” After a few hours, if it’s been done right, you can probably be finished and have an agreement. You may work for a few hours, and need to take a break. Sometimes there’s more than one mediation session, that’s not unusual. As long as we feel like we’re making progress, there is reason to do more than one session at mediation.