Mediation Process

Mediation is a process to navigate a divorce with the assistance of a neutral third-party mediator who facilitates discussions between the parties to help them reach a mutually acceptable agreement. Mediation is a type of alternative dispute resolution (ADR) that is often required before a party can bring an action in Court. (See module on ADR).

In mediation, the mediator does not make decisions for the parties but instead helps them explore options, communicate effectively, and find common ground. Mediation sessions may cover various aspects of the divorce, including division of assets, parenting plan/child custody, and cash flow. Mediation offers a cost-effective and efficient alternative to litigation, allowing parties to tailor agreements to their specific needs and priorities. It encourages cooperation and empowers parties to maintain control over the outcome of their divorce.

Engaging in mediation entails enlisting the assistance of a neutral third-party mediator to facilitate discussions and negotiations between spouses, with the goal of reaching a mutually acceptable agreement on key issues.  Mediators may be attorneys, mental health professionals, or other trained mediators specializing in family law. Your attorney may be able to recommend a mediator suited for your particular situation.  The Court may also have a list of recommended mediators or you can find someone through other sources, such as a local bar association, community boards, or word of mouth.

While there is not a uniform process for mediation, there are some common procedures that mediators use.  For example, you will often meet with the mediator for an initial session to discuss the mediation process, establish ground rules, and outline goals and priorities for the mediation sessions. The mediator will explain their role, ensure confidentiality, and encourage open communication between you and your spouse.  It is good to learn about your mediator’s style before starting the process to see if it is a good fit for you.

Mediation Styles

There are three common mediation styles, each offering unique approaches and techniques tailored to the needs of the parties involved:

1. Facilitative Mediation focuses on empowering parties to communicate effectively, identify issues, and generate solutions collaboratively with the assistance of a neutral mediator. In this style, the mediator facilitates discussions, encourages active listening, and helps parties explore interests and concerns underlying their positions. Parties maintain control over the outcome of the mediation and work together to develop mutually acceptable solutions.  Facilitative mediation promotes open communication, fosters cooperation, and allows parties to address underlying issues and interests rather than focusing solely on legal positions. It emphasizes problem-solving and encourages parties to explore creative solutions.
2. Transformative Mediation seeks to empower parties to transform their relationship and communication patterns through the mediation process, with the goal of fostering understanding, empathy, and mutual respect.  The mediator focuses on facilitating interactions between parties in a way that promotes empowerment, recognition, and validation. Transformative mediation emphasizes the parties' autonomy and self-determination, allowing them to define their own goals and outcomes. Transformative mediation offers parties the opportunity to improve their communication skills, build empathy, and develop a deeper understanding of each other's perspectives. It can lead to long-term positive changes in the parties' relationship dynamics and interactions.
3. Evaluative Mediation: involves the mediator providing expert opinions or evaluations on legal issues, likely outcomes in court, or the reasonableness of proposed settlement terms.  The mediator may offer legal advice, assess the strengths and weaknesses of each party's case, and provide recommendations for settlement based on legal standards and principles. Evaluative mediation may involve a more directive approach by the mediator. Evaluative mediation can help parties gain a realistic understanding of their legal rights and obligations, assess the potential risks and benefits of various settlement options, and make informed decisions about their case. It may be particularly useful in complex or high-conflict situations where parties are unable to reach agreements on their own.

With the guidance of the mediator you jointly choose, you will identify and prioritize the issues you wish to address during mediation, which may include property division, parenting time/child custody, child support, and spousal support. The mediator facilitates communication, helps you explore interests and concerns, and encourages creative problem-solving to find mutually acceptable solutions. Once agreements have been reached on all issues, the mediator may draft up an outline or memorandum of your agreements.  Typically an attorney will either be present with you through mediation or will come into the process after the mediation is complete to provide legal advice and finalize agreements for filing.

Because a mediator is a neutral party, it is unethical in most jurisdictions for the mediator to draft up final paperwork to be submitted to the Court. More likely, the mediator will draft up the agreements for the parties to make sure everyone has full understanding of the details and attorneys will provide the legal drafting and implementation with the Court. Mediators also typically do NOT provide legal advice. And, like most ADR processes, mediation is a voluntary process. While Courts may require you to attempt mediation, if you don’t like the process or feel like it will not help you reach a final resolution, you can terminate the process at any time. Mediation is often seen as a cost-effective and efficient way to attempt to reach resolution before incurring substantial expense and emotional strain of litigating.

Pros of Mediation‍

• ‍Cost-Effectiveness: Divorce mediation is generally more cost-effective than litigation and some other processes, as it eliminates the need for lengthy court proceedings and reduces legal fees associated with attorney representation.
• ‍Control and Empowerment: Mediation empowers parties to maintain control over the outcome of their divorce, allowing them to make decisions based on their own priorities, needs and interests, rather than relying on a judge's decision.‍
• Preservation of Relationships: Mediation fosters open communication and cooperation between parties, which can help preserve relationships, particularly when children are involved. It allows parties to work together to develop solutions that meet the needs of all family members.

Cons of Mediation

• Unequal Power Dynamics: In cases where there is a significant power imbalance between parties, mediation may not be appropriate, as one party may feel pressured to agree to terms that are not in their best interests. It's essential for mediators to ensure a level playing field and address any power imbalances effectively.
• ‍Inability to Resolve Complex Issues: Some divorces involve complex legal, financial or emotional issues that may be difficult to resolve through mediation alone. In such cases, parties may need to seek additional legal or financial advice or pursue alternative dispute resolution methods.
• ‍Requirement for Cooperation: Successful mediation relies on the willingness of both parties to engage in good faith negotiations and cooperate in reaching agreements. If one party is unwilling to participate or engages in adversarial behavior, mediation may be ineffective.

In summary, divorce mediation offers a cost-effective, empowering, and cooperative approach to resolving divorce disputes, but it may not be suitable for all cases.