When it comes to divorce, there are many different options for resolving disputes over property and assets. One popular option is mediation, in which a neutral third party, known as a mediator, helps the couple reach a mutually agreeable settlement.
But is mediation the right choice for you and your spouse? This article will explore what mediation is, what happens during a mediation session, and the pros and cons of using mediation to settle your divorce.
We’ll also cover some practical considerations, such as how to choose a mediator, dress for mediation, and whether or not you should have an attorney present.
What is Mediation?
Mediation is a form of alternative dispute resolution that involves a neutral third party (the mediator) helping two or more parties to reach an agreement.
The mediator does not make decisions or impose solutions but rather facilitates communication and helps the parties to negotiate an agreement that works for everyone. Mediation can be used for various issues, including property settlements in divorce cases.
What Happens During a Mediation
During a mediation, the parties will meet with the mediator privately. The mediator will first explain the mediation process and ground rules.
Then, the parties will have the opportunity to present their positions and concerns. The mediator will then facilitate a conversation between the parties, helping them to identify their common interests and explore potential solutions. The goal of the mediation is to reach a mutually acceptable agreement.
What are the Advantages of Mediation
There are several advantages to using mediation for property settlements in divorce cases. Mediation is often faster and less expensive than going to court.
Additionally, mediation is generally less adversarial than going to court, which can be beneficial for maintaining a healthy relationship with your spouse post-divorce.
Another advantage of mediation is that it allows for flexibility and creativity in the agreement. In court, the judge is limited by the laws and rules governing property division, but in mediation, the parties are free to devise solutions that work best for them.
What are the Disadvantages of Mediation
While there are many advantages to using mediation for property settlements, there are also some disadvantages.
One disadvantage is that mediation relies on the parties to agree voluntarily. This can be difficult if one party is not willing to compromise or is not acting in good faith.
Another disadvantage is that mediation is not always legally binding. This means that if an agreement is reached, it must still be approved by the court. This can add an additional step to the process and can be time-consuming.
Is Mediation Mandatory
Mediation is not mandatory in most states, but some courts will require it before allowing a case to go to trial. This is to encourage the parties to settle before going through the expense and stress of a trial.
You should check with your local family court to see if mediation is mandatory in your jurisdiction. The court will have a list of approved mediators.
Is Mediation a Good Way to Settle a Divorce?
Mediation can be an excellent way to settle a divorce for certain couples.
The advantages of mediation include the following:
- It is typically less expensive and faster than a trial
- It allows couples to have more control over the outcome of their divorce settlement
- It can help preserve relationships, especially if there are children involved
- It can be more private and less stressful than a trial
Mediation can be particularly beneficial for couples who can communicate well and are willing to compromise. It can also be a good option for couples who want to avoid the time and expense of a trial.
However, mediation may not be the best option for couples with a history of domestic violence or power imbalances. Mediation may also be unsuccessful if one party is unwilling to compromise.
How to Choose a Mediator
It is vital to choose a mediator who is qualified and experienced. Look for a mediator with training in family law and experience working with divorce cases. It is also essential to find a mediator who is neutral and unbiased.
Is Mediation Cheaper than a Contested Divorce?
Mediation can be less expensive than a contested divorce because it is faster and less adversarial. Mediation also allows the parties to control their costs. However, the cost of mediation can vary depending on the mediator and the length of the process.
The cost of a divorce mediator can vary depending on several factors, such as the location, the mediator’s experience and qualifications, and the case’s complexity. The average cost of a divorce mediator can range from $500 to $5,000 or more. Some mediators charge by the hour, while others charge a flat fee. It’s important to remember that mediation can be less expensive than a contested divorce, costing tens of thousands of dollars in legal fees. It is always a good idea to check with several mediators and compare costs before deciding.
Who Pays for the Mediator
The cost of the mediator is typically split between the couple. However, specific arrangements can be negotiated between the couple and the mediator.
What Percentage of Case Settle at Mediation?
The percentage of divorces that settle at mediation can vary depending on various factors, such as the complexity of the case and the willingness of the parties to compromise and come to an agreement.
Studies have shown that many cases that go to mediation are resolved. For example, according to a report by the American Bar Association, approximately 80-90% of cases that go through mediation are settled. However, it is important to note that not all cases that go to mediation will be successfully resolved, and some may need to proceed to trial.
It’s also important to note that mediation is not mandatory for most cases, and not all couples choose to go through it. Some couples may opt for direct negotiation or other forms of ADR.
It’s important to remember that mediation’s success rate can vary depending on the case’s specific circumstances and the mediator’s skill and experience.
Is Mediation Confidential?
Mediation is generally considered to be confidential. Most states have laws and ethical guidelines to protect mediation’s confidentiality. This means that what is said or done during mediation sessions cannot be used as evidence in court or revealed to anyone else without the parties’ consent.
Confidentiality in mediation allows the parties to have open and honest conversations without fear that their statements will be used against them in court. This can help create an environment of trust, facilitating the negotiation process and increasing the chances of settling.
However, there are some exceptions to the confidentiality of mediation. For example, if a mediator suspects child abuse or elder abuse, they may be legally required to report it to the authorities. Additionally, if an attorney represents a party during mediation, confidentiality may be limited, as the attorney is ethically bound to protect their client’s interests.
Before starting the mediation process, it is always a good idea to check with the mediator and ask about the specific confidentiality rules and exceptions.
How to Dress for Mediation?
When attending mediation, it is important to dress professionally and respectfully. You should wear clothes that you would wear to a business meeting or job interview.
What Happens if You Reach a Settlement?
If the couple settles during mediation, the mediator will write a summary of the agreement and have both parties sign it. This informal summary will need to be written into a formal marital settlement agreement.
A marital settlement agreement is a legally binding document that outlines the terms and conditions of a divorce settlement. It typically includes details on the division of property, assets, debts, and any issues related to child custody, support, and alimony.
If they have one, both parties and their attorneys sign the marital settlement agreement. Once the marital settlement agreement is signed, it is presented to the court for approval and made a part of the final divorce judgment.
What Happens if You Cannot Reach a Settlement?
If you cannot settle during mediation, you will have to go to court to have your property division determined by a judge.
Should You Have an Attorney at Your Mediation?
It is recommended that both parties have an attorney present during mediation, as they can provide legal advice and protect your rights.
Conclusion
Mediation can be a valuable tool for couples who want to reach a fair and mutually-beneficial agreement on property division without going to court. However, it is not suitable for all couples, and choosing a qualified and impartial mediator is crucial. If you are considering mediation for your divorce property settlement, it is important to weigh the advantages and disadvantages and to have an attorney present to ensure that your rights are protected.