Divorce doesn’t have to be a drawn-out, contentious battle between two former spouses, especially in divorce mediation. When you and your ex-spouse choose to mutually separate, mediation can save you precious time, money and stress. If you have chosen or are considering mediation, we’ve answered some questions our clients commonly ask to help you with your decision.
Divorce Mediation Defined
Mediation is a voluntary and confidential process where parties attempt to come to a resolution of their divorce matter with an unbiased third party. Mediation is useful for cases in which you and your spouse can’t reach an agreement on the terms of your divorce, but want to take matters in your hands. Rather than yielding power to litigating attorneys and the courts, you work with a neutral third party professional trained to inform and guide each of you through the mediation process, fairly and equally. It is important to note that a mediator does not make decisions on who is right. The parties themselves determine the outcome of their case.
Furthermore, mediation empowers you to cooperate with your partner, take ownership of your decisions and focus on your primary goals, bypassing the competitive win-or-lose nature of divorce litigation cases. Both of you work towards coming to an agreement at the end of your marriage while maintaining control of your costs, time, participation, enforcement, privacy, and outcome.
1. What is the Difference between Litigation and Mediation?
We cover the answer to these questions in depth in our Litigation vs Mediation Comparison Chart article. To sum up:
- Litigation is the process of you and your spouse resolving your case in court, typically with attorneys representing each party and a judge deciding on the outcomes.
- Mediation is the voluntary, confidential and privileged process of you and your spouse using a neutral third party to amicably come to an agreement on your own time and expense.
2. Is Mediation Right For Me?
To partake in a successful mediation, both you and your spouse must voluntarily and cooperatively participate in honest, amicable discussions about each other, your children, finances and emotions. Plus, you must work respectfully with the mediator to resolve the issues you couldn’t solve yourselves.
Here is a list of questions you can ask yourself to determine if mediation is right for you:
- Are you willing to amicably discuss and resolve your marital issues without going to court?
- Are you willing to be open and honest about your emotions, behavior, finances and assets?
- Are you willing to make compromises when necessary?
- Have you and your spouse already discussed how to divide your property, and/or share custody of your children?
- Are you and your spouse willing to voluntarily attend mediation?
If you answered yes to all of the questions above, then you are considered a good candidate for divorce mediation. Your mediator may also help to determine whether mediation is truly the best course of action for your situation or not.
3. Where Do I Start?
Before you actively decide on a mediator, you must do some thinking on your own. Namely, you have to answer three important questions, so you can efficiently choose who is a right fit based on what is most important to you.:
- What are your goals for the mediation?
- What are your expectations from the mediation?
- What is your (and/or your spouse’s) budget?
Regarding goals, what exactly are you hoping to achieve with mediation? What problems did you face with your spouse during negotiation that you wish to resolve with an impartial third party? What topics do you want to cover during mediation? On what issues do you stand firmly or have room to compromise?
Next, clearly define your expectations from the mediation. Do you feel that you are losing arguments with your spouse and you are looking to the mediator to establish fair play? How much time do you want to spend on mediation? Weeks? Months?
Finally, how much money can you spend on mediation? Will your partner be sharing the cost of the mediation? Are you willing to explore mediation programs that are more budget conscious? (For more information on cost, see “How Much Does Mediation Cost?” below.)
Answering these questions will help you gauge the personalities, qualifications, cost and experience of potential mediators so that you are better prepared to make a decision.
4. How Much Does Mediation Cost?
No two divorce cases are the same. The fees for mediation are calculated by the hour, so you and your spouse determine how many sessions and hours are needed to come to an agreement. It’s important to note that the cost of mediation may vary depending on the details of your case.
Average Cost in California
The average cost of an amicable mediation in California is around $5,000, not including the cost of divorce consultants or other attorneys. Comparatively, a litigation case can cost 3 times as much. From our experience, it can cost up to 10 times more in Los Angeles County!
How the Mediator is Paid
How the mediator is paid is up to the parties. Generally, we ask that the money come out of a joint account or each party contribute to one-half so that they both feel like they have “skin in the game”.
The True Cost of Non-Attorney Mediation Services
You may find businesses that advertise divorce mediation and legal document services for less than what you would typically pay when hiring an attorney as your mediator. It’s vital to note that even though these services may be cheaper, they are often provided by non-legal professionals or paralegals who may be focused on getting the job done quickly (as opposed to covering all your bases and meeting your goals) rather than correctly.
We’ve come across cases where we had to either repair agreements that were not closed or adjudicated properly, and it cost the client thousands of dollars to address the mistakes; even then, the mistakes are irreparable. While it’s smart to explore all your options when choosing how to dissolve your marriage, keep in mind the true cost of hiring a lawyer is to have the job done correctly from the outset.
5. What is the mediation process like?
At its core, your mediator facilitates a conversation between you and your partner in order to resolve your disagreements. Experienced mediators help you effectively identify the core issues of the relationship, consider both sides of the dispute and aid in developing solutions. Every case is different, so proficient mediators will customize their approach, communication and strategies to successfully navigate through the mediation process. Ultimately, a successful mediation results in a mutually beneficial agreement your mediator has constructed for you.
Before the Mediation
Before beginning the mediation, your mediator will meet with both of you to plan out the process. Especially in cases with attorneys, the mediator may receive a Pre-mediation Submission or Mediation Statement from each party to outline the important issues needed to be resolved in the case.
A Typical Session
Mediations are designed for both parties to feel comfortable with the goal of amicably resolving your marital differences. Parties typically gather around a table with water, tea, coffee or snacks present. Breaks are encouraged, especially during potential impasses.
The mediator begins the talks by asking each party to give their opening remarks without being interrupted. This enables the speaker to freely and openly communicate their feelings, thoughts and issues and the listener to truly hear what the other person has to say.
Skilled mediators understand that emotions may be high, so they must employ various tools and tactics to maintain constructive conversations and progress towards the common goal of reaching an agreement. If needed, the mediator may opt to break into private groups with each party, called caucuses, in order to manage the communication. Other times, one party may request a private conversation or question with the mediator. Good mediators who grant this may do the same for the opposing party to maintain balance and fairness. While these conversations may be confidential within the mediation, they may not be confidential between the parties, since the mediator must remain neutral.
All in all, the mediation session environment and process facilitates cooperation, healthy communication and problem-solving with the aid of an effective mediator.
6. Who Attends the Mediation Sessions?
Typically, both parties and a mediator present in mediation sessions.
One or both of you can elect to hire attorneys to advise you as well. The attorneys can be present in person or by phone, if requested by and agreed upon by the parties. If anyone outside of lawyers is needed to attend, this must be agreed upon by the parties as well.
In mediation sessions with complex issues, you may need to have jointly retained custody professionals, forensic accountants or divorce consultants present to thoroughly examine and solve your divorce case.
7. How Long Does Mediation Take?
Generally speaking, our clients in California spend 3 to 4 months, on average, to complete the mediation process and come to a mutual agreement. However, it’s difficult to accurately estimate how long your mediation will take without knowing the details of your goals and the depth and breadth of your issues. The good news is that you and your soon-to-be ex-spouse have complete control of your timeline. How long it will take to conclude your divorce mediation is entirely dependent on how long and how well you and your partner are able to come to terms on a legal agreement.
8. What are the ground rules of mediation?
Depending on the case, mediators may impose custom ground rules as they may see fit to help the process. Beyond these crafted guidelines, here are three standard rules of mediation:
Mediation is Voluntary
Attending and cooperating with the mediation is completely voluntary. Both parties are not required to come to an agreement and each person can opt out of the mediation at any time. The idea of mediation is to amicably arrive at a mutual understanding, transcribed into a legal agreement. Plus, the agreement is binding only if both parties agree to it.
Mediation is Confidential
Unlike litigation, mediation is a confidential process where decisions are made privately. This allows both parties to feel comfortable talking about important topics freely and openly on sensitive topics.
Mediation is Privileged
Mediation is privileged, which means that statements you make in a mediation cannot be used against you later in Court or other legal proceedings.
9. Is a Mediator Like a Judge?
No, a mediator is not like a judge; there are several key differences:
- The mediator does not decide who is right or wrong in the case. The mediator remains neutral and doesn’t “hear each side” to make their case and make a ruling.
- The mediator does not tell you or your partner what to do or how to resolve the case. They may provide suggestions to enable each party to construct their own solutions best suited for their case.
- The mediator does not enforce orders. It is up to you and your partner to develop a mutually agreeable plan of action to be executed after the agreement. If there are any issues enforcing an order, or the need to modify an agreement arises, you will need to seek the Court’s assistance, or set up additional mediation sessions with your mediator to hopefully work out a new agreement.
10. Should I Consult An Attorney in a Mediation?
Yes, because the mediator is a neutral third party that does not and cannot give you legal advice. A consulting divorce attorney, or divorce consultant is the key to making sure your rights are protected, your finances are considered and that your primary goals are achieved. It’s important to note that a consulting attorney is not retained as your Attorney of Record, so they do not appear in Court on your behalf, nor do they represent you in your case. This means you pay for the consultant’s time as you see fit.
If you do choose to hire a divorce consultant, be sure to start working with them before your mediation starts, so that the attorney can determine how you came to an agreement, advise along the way, and provide you with comprehensive support. Our unique approach to divorce consulting combines legal representation with the sensibility of a financial coach and emotional counselor. Ask us anything about your case—we’d love to help.
11. What If My Spouse Won’t Agree to Mediation?
First, share this article with your spouse to help educate them on the mediation process and the pros and cons of litigation. If your partner won’t agree to mediation, you’ll need to hire an attorney to help litigate or resolve your case. A judge will oversee your case and decide who gets custody of the children and how property, assets, and custody of children will be divided between the two of you. On the other hand, your and your ex-spouse’s respective attorneys will try to resolve the case on your behalf, which can also become costly.
And if your spouse hasn’t cooperated with the divorce process at all, you can still move forward with finalizing the divorce yourself through the default process. Since the default process can be very technical, you will want to hire an attorney to assist you with this. You can always contact us and we will make sure that you are in the right hands, even if it is not with us.
12. What If We Can’t Resolve Our Matter or Reach Agreement?
Sometimes mediation alone cannot resolve issues in a divorce, especially in complex cases involving custody, finances and assets. In these cases, litigation may be inevitable, but you can walk away with the invaluable experience of working with your partner and a mediator in a commendable attempt to resolve your differences. We are here for you to advise on your options and provide recommendations and/or referrals to the best resources in our extensive network of proven professionals.