What Is Divorce Mediation?

Divorce often conjures up images of embittered spouses battling each other in court for months or even years. In reality, most marriages come to an end in a far less dramatic fashion. In many divorces, the parties resolve their issues through alternative dispute resolution, such as mediation.

Divorce mediation can help the parties settle their divorce without unnecessary family court hearings and litigation costs. For legal advice on whether mediation is best for your situation, contact a local divorce lawyer.

How Divorce Mediation Works

Mediation is not the same as arbitration, another form of alternative dispute resolution (ADR). In arbitration, a third party hears and decides a dispute after holding a trial-like proceeding. In mediation, the role of the third party is merely to facilitate discussion and a settlement agreement between the parties.

“When I mediate, the parties and their counsel are in separate rooms, and I go back and forth,” says Carol Breitmeyer, a family law attorney at Breitmeyer Cushman in Royal Oak, Michigan. “I listen carefully in each room. They typically provide a summary of their issues and a little bit of a background, and then I go back and forth and see if I can find a place where everyone can agree.”

The magic lies in seeing two parties come to an agreement, which they accept for different reasons, through successful mediation. “They have different focuses, and so it’s always fascinating. The parties wouldn’t know what’s in the other one’s mind, I don’t think, and the mediator doesn’t ever disclose this. So that’s kind of cool if you have two parties who are quite OK with the settlement and for completely different reasons.”

Benefits of Divorce Mediation

A mediator’s role is as a neutral third party. Divorce mediation services offer “a bridge between do it yourself and two lawyers,” says Susan Hansen, a family law attorney in Milwaukee, Wisconsin. “It meets a need.”

Hansen lists many benefits to mediation over divorce litigation, including:

• Clients craft their own solutions, rather than having a lawyer or judge influence the solution
• Mediation is a private process that encourages open conversations versus opposition
• The cost of mediation is less than each party hiring its own attorney
• The divorce mediation process saves time over the court process

Mediation clients still receive legal information. “If part of the issue is that one person has always run the finances, the other has no idea,” Hansen says. “Part of the role of the mediator is to ensure that there is full education that brings balance, so that whatever they decide is a fully informed decision.”

The Mediator’s Role in Divorce Negotiations

The mediator will assist the parties in a divorce in setting the agenda for the mediation sessions. They identify disputed issues, such as child custody, property division, and spousal support (alimony). The mediator is there to guide the parties in their discussions but not to make decisions for them.

Mediators can fill different roles. “There’s early-stage mediation, late-stage mediation, facilitative mediation, and evaluative mediation,” Breitmeyer says. “Each county kind of has its customs and traditions. In the metropolitan Detroit area, it tends to be a later-stage mediation, where the mediator is chosen or selected by the attorneys in the case.”

In Michigan, where Breitmeyer practices, there is a rule that subjects domestic relations cases to mediation. A mediator typically gets involved after discovery in those cases. However, earlier mediation may sometimes be appropriate. “Sometimes people will call and say, ‘Can you get involved now? We’ve got problems with discovery; we’ve got problems with evidence. Can you just get involved and see if we can kind of cut to the chase and avoid a bunch of costs in litigation?'”

If your divorce involves a family-owned business, mediation may be an ideal option. “It can be incredibly helpful in cases where there are complex business issues,” Breitmeyer notes.

Mediation Is Generally Quicker Than Divorce Litigation

Generally, the mediation process is much quicker than litigation. When mediation is successful, the parties will have a negotiated agreement that they can then present to the court for approval. However, since the mediation program does not require a trial, the parties can avoid “airing their dirty laundry” in a public forum.

“[Mediation is] confidential in that nothing the parties say or consider could ever be shared with the court,” Breitmeyer says. “It’s confidential within the room as well.” And, she adds, “As a mediator, you can’t be compelled to talk about what happened in mediation except under a couple of super limited circumstances.” That confidentiality, she notes, allows parties to be creative and take positions they might not take at trial.

When Mediation Is Not the Answer

Mediation is “a good option in almost every kind of case, except where there’s been a significant or serious domestic violence,” Breitmeyer says. If one of the parties has previously committed (or threatened) acts of spousal or child abuse, mediation is usually not appropriate.

Another scenario in which mediation is unlikely to succeed is when either spouse is caught hiding assets or debts from the other. Even though the parties are seeking a divorce, the mediation process requires a certain level of trust and safety between them.

“I don’t think any evolved lawyer would say litigation is going to be the preferred option,” Breitmeyer says. “It’s just sometimes, when one of the parties or one of the lawyers takes an unreasonable position, you’re going to be forced into litigation.”

Although mediators can provide legal information to participants, mediators cannot provide legal advice. “Some people need and want individualized legal advice. They want to be one-on-one with a lawyer who evaluates what a court might do. They want that outside advocate on their behalf,” Hansen says.

Fortunately for the mediation participant, the option to hire an attorney is always available during the mediation process. If it’s not working, the parties can still go to court for issues that are not resolved in mediation.

Mediation Agreements Are Legally Binding

If mediation does not work, the parties may have resolved some of their issues, even if there are other questions that need to go before a judge. Again, the mediator will not make any decisions for you. Nor will the mediator advise the judge on a course of action. The only function of the mediator is to assist you in reaching a divorce settlement when possible.

“Once the parties have come to an agreement and it’s reduced to writing and signed by the parties and counsel, that is legally binding on the parties,” Breitmeyer notes.

Hiring Your Own Attorney for Divorce Mediation

That’s why it’s important to consider hiring your own attorney, even if you intend to settle your divorce through mediation. A mediator is a neutral third party, but a lawyer will act in your best interest. “I think the best thing a lawyer can bring is not only advocacy, but an understanding of the law and the parameters of what the reasonable outcomes look like,” Breitmeyer says.

Overall, mediation tends to be a good option to resolve disputes without going to trial. It has the potential to save a lot of money and a large amount of time. “It has been highly successful. Very, very few cases are tried in the three counties which constitute the metropolitan area—more or less—of Detroit.”

Get Legal Advice About Divorce Mediation

If you have additional questions about the mediation process, contact a qualified divorce lawyer as soon as possible. Ask them about their attorney’s fees or mediator’s fees and the pros and cons of mediation. Contact an experienced divorce attorney for legal advice.