So It Didn’t Work Out
More than 800,000 married couples divorce each year in the U.S., according to government figures. And not only do most of those divorces come with expensive legal tabs, but ex-spouses can end up in dire financial straits when it’s all over.
Instead of heading to the lawyer’s office, some couples are turning to mediation. With mediation, you can hire a neutral third party, known as a mediator, to help you resolve issues of the divorce, such as child custody and finances.
If you’re considering ending your marriage or have started the process, here’s everything you need to know about divorce mediation.
The goal of mediation is for a couple to reach an agreement that will be formalized into a written, legally binding contract, says Maren Cardillo, attorney-mediator at Divorce Mediation Professionals. (Attorney-mediators can draft this contract during the mediation process. Non-attorney mediators prepare a memorandum of understanding at the end of the process, which is sent to an attorney to draft into a legally binding contract.) Since you’re making the decisions about your divorce rather than “having those decisions imposed on you by a judge,” you’re more likely to feel okay living with them, Cardillo says.
In addition giving you more control, divorce mediation can save thousands, says Dan Blair, a divorce mediator at Blair Counseling and Mediation in Crystal Lake, IL. While an average divorce can cost $15,000 to $20,000 per person, mediation is usually billed hourly, at about $200 to $250 per hour, and can often be completed in just a few sessions, Blair says.
Who Needs Mediation?
If your divorce is uncontested and spouses are able to agree on all issues, there’s no need for mediation. In that case, each spouse should see an attorney to confirm that their agreement is legal, and to have it drafted for approval by a judge.
However, if you disagree on how to distribute property or custody of children, mediation may help, especially as the conversations get heated. Mediation creates a “non-contentious environment where both sides can get their feelings on the table,” says attorney Evan Balmer of New York–based Balmer Black, including “thoughts on emotional, financial, and legal issues.”
This can be a more productive approach than the lists of demands common in court procedures, and “once a couple can get into this deeper conversation, creative solutions that both sides can be happy with often emerge,” Balmer says.
How to Get Prepared
Before going to a mediator, make sure you understand your entire marital estate, including assets, debts, and income, recommends attorney Linda Kerns. After all, if you don’t have a complete picture of your finances, you won’t be able to negotiate. And make sure you ask for documentation, Kerns says, instead of relying on oral statements.
You might want to meet with a financial professional to assemble and analyze all the necessary information, and “do not try to negotiate about anything you do not understand,” says Rosemary Frank, certified divorce financial analyst with Rosemary Frank Financial. This includes real estate, investment accounts, pensions, stock options, or tax issues. If this sounds intimidating, note that you do have the option to bring a lawyer with you to mediation to advocate on your behalf.
In addition to understanding your positions — what you’re willing to give up and hoping to gain — you should also research the legalities surrounding divorce and mediation agreements. To make sure you know what you’re getting into, consult with an attorney before mediation, Kerns says. Be sure to ask about which parts of divorce agreements can be modified and which ones can’t. Distribution of assets and debts generally cannot change, but child custody and child support is usually modifiable, Kern says.
For example, you may agree to give up the house on the condition that your ex won’t ask for child support. But because child support is modifiable, your ex may end up asking for it — and getting it — down the line. Even if that happens, though, you still won’t get the house. If you’re armed with information you can make deals that will hold up over time.
Manage Your Expectations
While everyone should go into mediation with an agenda in mind, nobody can expect to get everything he or she wants. In fact, the whole point of mediation is to figure out compromises to allow everyone to move forward.
It’s key that you understand “a ‘mutually agreeable’ resolution does not mean either party was really happy,” Frank says. “It has been said that a successful mediation leaves both parties equally unhappy. That is a true indicator of compromise. By definition, no one ever gets everything they wanted.”
“The success of mediation depends on the motivation of the parties to resolve the issues amicably in the least expensive way,” Blair says. If you and your ex go into mediation willing to compromise and work through the issues — rather than trying change the other person’s mind — you are likely to come to an agreement.
Size Up Your Ex
Regardless of the outcome, you can gain an important understanding about the other party’s point of view through mediation and better prepare for next steps like litigation, so make the most of your time in the mediation room.
While divorce is an understandably emotional process, your goal should be to “focus on keeping a cool head, and don’t let the other side's posturing disturb you,” says Michael Giel, family law attorney at J. Demere Mason. “You are there to reach a good deal if you can so that you can finish the divorce.”
Even if your mediation doesn’t result in a resolution, use it as a learning experience for the rest of the divorce process. “Listen and obtain as much information as possible,” Kerns says. This will help you when you take your divorce to trial.