Divorce Meditation – Points to Keep in Mind

Mediation is not negotiation. Negotiation applies to situations where both parties have an established position that breaks down, essentially, to a set of demands. In mediation it is assumed that the intention of parties is to reach an agreement, not to break the will of the opposition.

Over the past twenty-five years court ordered mediation in divorce cases has gone from a rare, special case situation to the norm. Approximately two-thirds of all United States jurisdictions use one form mediation or another where parties cannot come to an agreement on their own regarding support, property disposition, child custody or visitation rights.

It used to be that, when court-ordered, mediation was generally paid for by the court. That can no longer be said to be the case, though the practice varies between states. Where minor children are involved, mandatory mediation is legally required in many jurisdictions. In such jurisdictions the cost of mediation is either born by the court or split between the parties. Increasingly, who should bear the expense of mediation is left up to the judge to decide on a case-by-case basis.

Any divorcing couple can decide between themselves to enter into mediation at their own expense, any time they choose. The court can order mediation in any of several cases; where it is mandatory, where it is requested by one or both parties and agreed to by the judge, where the judge orders it at his discretion, or where the judge is requested to so by an outside party such as a child psychologist.

Mediators will sometimes require both parties to retain a lawyer, which surprises couples who want to dissolve their marriage amicably, outside our adversarial court system. In such cases, both parties should make it clear to their lawyers in writing that the lawyer is only being retained because it is required.

In cases where divorce mediation is occurring voluntarily, it is never a good idea to have one spouse’s lawyer act as the mediator, even with the best of intentions. Where both parties decide to proceed in this manner, a written waiver by the unrepresented spouse should be signed. If not, whatever agreement comes out of the mediation process will be open to challenge.

It must be remembered that mediation agreements are enforceable by the courts. This is not a casual process, it is a legal one. If you sign a formal mediation agreement and later want to have it changed, you will have to show cause, just as if you were challenging a court-ordered agreement. For this reason, it is never a good idea to sign the mediation agreement when in an over-emotional state. Mediation can only be an alternative to court if they are legally binding.

There are several reasons for choosing mediation. Cost: mediation is less expensive than going to court. Confidentiality: mediation is a private, confidential process. Court proceedings are matters of public record. Flexibility: the minutia of dividing household property requires more flexibility than courts have the time or patience to engage in.