What is mediation and how does it work in the divorce process?

Mediation is a form of “alternative dispute resolution” — that is, a means of resolving a dispute without a court trial.

Mediation can be particularly advantageous during the divorce process because parties who are actively involved in the settlement of their divorce are far more likely to move forward in a positive vein in the post-divorce world and to abide by the terms and provisions they have agreed upon. People who have assumed a significant role in the development of the post-divorce world are more invested in achieving successful, non-confrontational outcomes, than those who have had their future imposed upon them by the court. This is especially important in cases involving children. Consider that, even though your marriage is over, you and your former spouse will be inseparably and eternally linked by your children. A “scorched earth” approach to the divorce will serve only to poison the very deep well that you two will draw from for the rest of your lives. Thus, mediation can make the divorce easier to live with in the present and long into the future.

How does mediation work?

The logistics of mediation can vary widely from jurisdiction to jurisdiction, and almost always are controlled by local rules, practices and customs. In many jurisdictions, mediation is a mandatory first step in all disputes involving custody and visitation. Sometimes, though infrequently, mediation will be used to address economic issues, but this usually is done by agreement of the parties, not by rule or court order.

Mediation is generally conducted by a mediator, often an attorney who has a particular expertise in family law and who has taken a training course to become certified as a mediator. In some jurisdictions, the mediation process involves only the parties and the mediator. In others, the divorce attorneys are actively involved in the mediation process itself. Witnesses will not testify (but you and your divorce lawyer should have a firm grasp on what key witnesses would say should the case go to trial).

Regardless of the logistics, two factors play an important role in every mediation. First, the goal of mediation is not necessarily to do what a judge would do, or to achieve the outcome a judge would decree based upon the law and facts. Rather, the goal of mediation is to get the two parties to agree upon a resolution of the disputed facts and issues. This means there is certain to be some coaxing, if not cajoling, by the mediator to get the parties to reach an accord. This generally involves the mediator determining which of the two parties is the more pliant, and moving that party in the other direction to reach an agreement.

Second, because the primary goal of mediation is to get the parties to reach an agreement, the weaker of the two parties may be disadvantaged by the mediation process, unless he or she is well prepared for a battle of wills. Thus, well before the mediation process begins, you and your divorce lawyer must have a goal-setting conversation. You must determine where the line in the sand is going to be drawn. What items are negotiable and what (ideally, relatively few) items are non-negotiable. Embarking upon mediation without a clear set of goals is like jumping in your car and driving aimlessly, turning or not, depending upon the whim of the moment. You won’t get anywhere unless you have some idea of where you wish to go before you start; moreover, even if you get there, you won’t have any idea how you did. You and your divorce lawyer should agree on strategies for handling the mediator’s attempts to push you on your non-negotiable topics. For example, mediators are trained to bounce off non-negotiable issues, and return to and attack them from different points and perspectives. You need to be prepared to deal with that approach. Often, this can be handled simply by saying, “I won’t do that, but I will do . . . ” and deflecting the conversation back to a topic on which you are willing to give ground. A certain level of flexibility is critical. A hard-line approach, without some indication of a willingness to deal on other issues, is the surest and quickest way to an unsuccessful end to the mediation process. Successful mediation is most often achieved by parties who are prepared to convince their spouse and the mediator that there is no room to negotiate on a particular issue, while holding open the door to agreement on other issues.

Why is mediation advisable?

Some issues might not be so easily deflected, and often no compromise is possible. In such cases, mediation can still generate useful agreements (or “stipulations”) on topics that are not in dispute, thereby reducing the number of issues which will actually need to be litigated or addressed by the court. Many times, mediated agreements can save the court and the divorce lawyers time, and save the parties money by delineating the areas of agreement that the parties have reached, even if a global arrangement has not been agreed upon. Plus, once the parties see, in writing, the breadth of disputes they have resolved in this fashion, further negotiations often can produce the agreement that escaped them during the mediation process.