Chapter 4 Working It Out: Divorce Mediation

• Library: Nolo's Essential Guide to Divorce (Nolo) (2020 Ed.)

CHAPTER 4 Working It Out: Divorce Mediation

Why Divorce Mediation Works

What Does Mediation Cost?

Is Mediation Right for You?

Suggesting Mediation to Your Spouse

Choosing a Mediator

Types of Mediation

Therapist and Lawyer Mediators

Making a Short List

Interviewing Mediators

Choosing and Working With a Lawyer

The Mediation Process

The Intake Interview

The First Session

Making a Plan and Moving Forward

How to Make Your Mediation a Success

After the Mediation, the Paperwork

If Mediation Doesn't Work

Perhaps you are one of the fortunate divorcing people who can negotiate directly with your spouse with a minimum of acrimony, come to an agreement about dividing property and parenting your children, and prepare and file your court papers for an uncontested divorce, all without outside help. If so, mazel tov! You can skip this chapter (and the next one, too).

But if you're like most people and would appreciate a little help in the negotiations, divorce mediation may be just what you need. And if you have kids, you may end up in mediation whether you want to or not. Many courts now require parents to attend mediation sessions if they can't agree about custody or visitation.

Unless the court orders it, mediation is a voluntary process, and you will use it only if you and your spouse both agree to it. You can go to mediation at any point in your divorce, even if you've already hired lawyers. Divorce mediation has an extremely high success rate—the vast majority of cases that go to mediation get settled there.

Why Divorce Mediation Works

Divorce mediation is a process in which a neutral third person, called a mediator, sits down for a series of meetings with a divorcing couple to help them reach an agreement on all of the issues in their divorce. Most couples arrive at agreements they can live with—which means they don't have to fight about any of these issues in court. Mediation offers many advantages over court battles.

You stay in control. You don't turn your divorce over to lawyers, who then start to run the show. Instead, decisions stay where they belong: in your hands. After all, you know best the condition of your finances, the needs of your children, and your plans for the future.

Conflict is dampened, not fueled. When lawyers do the talking, conflict tends to escalate. But in mediation, you communicate directly with your spouse instead of through third parties. The mediator is trained to help you communicate effectively and keep you focused on the present and future, not on what happened in the past. You each have the opportunity to share your concerns, beliefs, and desires and have them listened to (and maybe even understood) by the other person in a neutral setting, so resentment and misunderstandings can be eased.

You can still get legal information and advice. Mediators can provide legal information that helps you make informed decisions, though they won't give legal advice to either of you (that's because they are neutral and don't represent either of you). You and your spouse can both hire lawyers if you wish, to get legal advice and be sure your rights are protected. You can also hire a mediation coach—a lawyer or a nonlawyer with expertise in communication and negotiation, who will give you advice and support through the mediation process.

You'll save a ton of money. Even if you and your spouse both hire consulting lawyers and use other professionals to help you negotiate your divorce, the cost of mediation is much less than that of a contested divorce. (See "What Does Mediation Cost?" below.)

You can do what works best for your family. In mediation, you don't have to go by what the law would say about dividing your property or dealing with your kids—you can be creative about solutions and do what works best for you. For example, a court might order that you get half of your spouse's pension, which you wouldn't receive until your spouse reached retirement age. But if you'd actually much rather keep the house and let your spouse keep the pension, in mediation you can do it that way.

The process is much less stressful than court. Mediation is informal and unintimidating. You keep control over when and how often you meet and how much help you get from advisers. Mediation is private; nothing that happens in the mediation session goes into the public records except the ultimate outcome. And you avoid the drama and public spectacle of a divorce trial. Your contact with the divorce court is limited to submitting paperwork—you probably will never have to appear before a judge. (Learn more about trials in Chapter 5, and you'll probably be even more inclined to give mediation a try.)

You'll have fewer disputes later. Because you remain in control of the decisions, you and your spouse are much more likely to be satisfied with the result and to comply with all the terms of your negotiated agreement. That means everyone—including your children—is happier in the long run.

What have you got to lose? Deciding to try mediation doesn't mean that you're stuck with it if it doesn't work for you. You can stop at any point and go on with an attorney-negotiated or litigated divorce. From a financial perspective, you have very little to lose by trying mediation. Even if it doesn't work, the information sharing and negotiation you do will make your contested divorce process more efficient. (See "If Mediation Doesn't Work," below.)

"Alternative" Dispute Resolution You may hear mediation referred to as a method of "alternative dispute resolution." Arbitration, which we discussed in Chapter 1, is another so-called alternative procedure. This is something of a misnomer—the term "alternative" refers to alternatives to trial, but given that trials are actually the least common way for a case to resolve, mediation and arbitration really should be known as the standard ways to settle a divorce case, with trial as the alternative.

What Does Mediation Cost?

Mediation is generally much less costly than a contested divorce case. It's certainly more efficient, and when professionals are being paid by the hour that makes all the difference.

Here's an outline of a scenario showing how mediation is more efficient and less costly than litigation. Mediator and lawyer fees vary a great deal by geographic area, but taking an average hourly rate of $250 and assuming your mediation takes 12 hours, you and your spouse together will pay the mediator $3,000. Let's say you each also pay consulting attorneys for nine hours spent coaching you, reviewing the settlement agreement, and filing papers for your uncontested divorce. That's another $4,500. You may also hire an actuary to value a pension plan ($500) and a CPA to review your settlement for tax consequences ($400). You have one meeting with a child psychologist to discuss how best to help your child cope with the divorce ($200). That's a total of $8,600.

Now let's say that instead, you and your spouse each hire lawyers of your own to negotiate for you. You each have initial consultations ($500 each) and give the lawyers financial documents to review. Your lawyer spends time putting those documents in the required form to send to the other side (which is what your spouse has become), and reviewing the documents from your spouse (many of these may be the same documents). The lawyers talk to each other, too. That's probably another $3,000 total.

Over the next few months, there's some wrangling about the visitation schedule and support payments, and your lawyers make a trip to court to argue those issues in front of the judge (at least $2,000 from each of you). You hire competing appraisers to value your home ($1,000), you each hire a CPA to look at the tax issues in your divorce ($800), and you have several visits with a custody mediator to work on your visitation schedule ($550). Your lawyers coordinate all of this and review the reports of these other professionals, then argue with each other about what the reports mean—and you are kept up to date on these negotiations, which also involves the lawyer's time. Another $1,500 each.

After all of this, your lawyers may encourage you to try mediation with the lawyers present—a great idea, but another $1,500 from each of you to pay the mediator and your own lawyer for a half-day session, plus the $500 you'll each pay your lawyer to prepare for the mediation.

At this point you've spent more than $8,000 yourself—almost twice what you would have spent to have your divorce completed in an average mediation process. And you haven't even paid for the lawyers to prepare and haggle over a settlement agreement if you settle in mediation (another $1,000 at least). If the mediation isn't successful, you're looking at another 50 to 75 hours of your own lawyer's time preparing for and presenting your case to a judge.

You can do the math on that, and it isn't pretty: You and your spouse could end up paying tens of thousands of dollars each for your divorce trial. Can you think of other ways you might want to use that much money?

Typical Costs: Mediation vs. Pretrial Costs Using a Lawyer

Mediation (one spouse's share)		Contested Divorce (one spouse's share of pretrial costs)
9 hours consulting attorney	$2,250	Initial consultation with lawyer	$500
		Lawyer reviews documents, talks to your spouse's lawyer	$1,500
		Court hearing	$2,000
		Lawyer reviews reports, negotiates with your spouse's lawyer	$1,500
12 hours mediation	$1,500	Mediation prep and time in mediation	$2,000
Actuary	$250	Appraisal	$500
Accountant	$200	Accountant	$400
Custody evaluator	$100	Custody evaluator	$275
TOTAL	$4,300	TOTAL	$8,675

Is Mediation Right for You?

Mediation is a good option for almost everyone, but there are a few exceptions. For one thing, if you think you have a chance in the court system of getting everything you want, and it's important to you not to compromise...