how does mediation work during divorce

What is Divorce Mediation?

Goldberg Jones Divorce, Divorce Process Leave a Comment

When it comes to dissolving a marriage, many people think of intense courtroom trials. That, however, isn’t the only option. Other tools provide alternatives. One of the most popular and effective is divorce mediation.

What is Divorce Mediation?

Mediation is a form of alternate dispute resolution, or ADR. As the name implies, this provides a legal path that isn’t litigation. Used in civil suits, including divorce and child custody cases, in mediation, both sides come together in an attempt to settle the matter before them.

It proves especially effective in family law situations. Facilitated by a third-party, spouses use this process to reach agreements on divorce, custody, visitation, child support, spousal support, and most other types of cases.

It’s important to note mediation is not legally binding. No decision is forced upon anyone and each party ultimately must accept the terms. The mediator guides and assists but doesn’t pass judgment.

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When It Works Best

Because mediation is not legally binding, it works best in situations when divorcing couples are relatively amicable. Or at least when they’re willing and able to play nice long enough to hammer out an agreement.

People also choose mediation because it’s often significantly cheaper, faster, and less stressful than a standard trial. In fact, many couples try mediation before heading into the courtroom. Instead of sitting in front of a judge, the process essentially boils down to a small number of people working together in an attempt to reach a common goal.

Related Reading: 8 Ways to Rebuild Finances After Divorce

How to Choose the Best Mediation Style

Within the larger category of mediation exist a number of different approaches. It’s important to pick the best mediation style for you and your case.

You can choose from evaluative mediation, facilitative mediation, and transformative mediation. Each varies in approach and comes with its own unique set of peculiarities.

The best mediation style for you depends a great deal on your circumstances and the specifics of your case. With the differences, there are situations where each may prove to be the ideal fit.

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1. Evaluative

This approach provides spouses with a clearer understanding of what a trial might look like in their situation.

The mediator uses this opportunity to demonstrate how a judge or jury might look at the specifics of your case and even point out flaws in one party’s position.

As evaluative mediation is most similar to an actual trial, it often surfaces in civil suits like divorce. There’s room to work with conflict. Former judges or attorneys often serve as mediators and can explain the strengths and weaknesses of a particular stance.

In these situations, it’s common for the facilitator to put the spouses in separate rooms and jump back and forth as each side makes offers and counteroffers.

Ultimately, the aim is to meet somewhere in the middle and land on a satisfying resolution for everyone. Of the three approaches, evaluative mediation focuses primarily on the end result. The goal is to reach an agreement and avoid trial rather than spare individual interests and feelings.

If you’re simply looking for a settlement, this may be the best mediation style for you.

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2. Facilitative

When it comes to this mediation style, the third-party basically plays the role of facilitator. He or she guides spouses through the process, making sure each understands their options and the impact of their choices. Ideally, the end result is a mutually beneficial resolution both parties agree on.

In facilitative mediation, the moderator is more removed. He or she asks questions and steers the proceedings but doesn’t usually interject or make suggestions.

In the end, it falls to the spouses involved to arrive at a settlement on their own.

This may be the best mediation style in some instances, especially when the two sides share goals. In high-conflict situations, it may not always be as effective.

Related Reading: 8 Ways People Damage Their Own Divorce Cases

3. Transformative

This mediation style is most common when, in addition to settling a dispute, the two sides want to address and repair problems in their relationship. While the mediator supports both parties, this strategy aims to get each side to understand the other’s needs and position.

Transformative mediation is similar in style to its facilitative cousin but differs in a few key ways. A newer approach, it’s often looked at as a touchy-feely strategy.

Using this style, the mediator is more of an enabler, helping the two parties to grow and change—to transform.

This approach primarily focuses on mending fences and repairing a damaged relationship rather than reaching a definite resolution. This can alleviate some of the pressure on clients, but it often leads to a longer process and less tangible results.

A transformative approach is usually the best mediation style when the participants want to preserve or salvage a relationship. If children play a part, this can be useful for parents trying to maintain civility and a future relationship for the sake of their kids.

Related Reading: When is the Best Time to Divorce?

Should You Hire A Lawyer For Mediation?

One reason many couples opt for mediation in divorce is because it doesn’t require legal counsel. Still, hiring a lawyer is worth considering.

This is especially true if your spouse has an attorney as representing yourself can put you at a significant disadvantage. An experienced lawyer accompanies you to sessions and offers advice. And before you sign anything, they also make sure a settlement is fair and fits your needs.

Even if you do hire an attorney to help with mediation, the cost will almost certainly be much less than if you go to court.

Methods of dispute resolution like mediation offer an alternative to courtrooms and trials in divorce. But under that umbrella, you find a number of methods.

Some mediators subscribe to one or the other, while more use a pick-and-choose approach. The best mediation style for your case depends on the specifics of your situation, what you need, and what you hope to get out of the process.

Related Reading: When to Hire a Divorce Lawyer

Pros and Cons of Mediation

No two divorces ever play out in the same fashion. You have many options when it comes to ending your marriage. Mediation, as we’ve said, is one of them. But there are a lot of questions about the process. What are the pros and cons of mediation? Is it right for your case?

Our founding partner, Rick Jones, makes regular appearances on the Danny Bonaduce and Sarah Morning Show on KZOK. He answers listener questions about family law matters. During a recent episode, a caller had questions and concerns about mediation.

Listen to the Call Below:

Caller: “I’m currently separated from my wife. Not legally separated, but we’re living apart and made the decision to get divorced. She’s pushing for us to do so through mediation, I’m assuming to save a bit of money. She’s always been a bit of a penny pincher. We’ve been married for seven years, don’t have kids, [but] we do own a home together. I was just wondering what the pros and cons are of mediation? Should we still hire an attorney?”

Rick: “I’m going to dive straight into mediation because mediation is a great tool, and it’s very often used even with attorneys on both sides because that ultimately is the two of you making your best efforts to get this thing settled short of going to trial.

“However, if you’re just jumping into mediation when you haven’t had an attorney or haven’t had counsel on your own, you’re basically getting in front of somebody that has one goal, and that’s to close the deal and get a settlement from you. They’re not there to counsel you; they’re not there to counsel her. The real key is that you need to educate yourself beforehand.

“Now, if she chooses not to educate herself, and you do educate yourself, by going to mediation you’ll probably have a leg up in it.”

Related Reading: 7 Mediation Questions Answered

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