how does mediation work during divorce

Divorce Mediation, How Does It Work?

Goldberg JonesDivorce, Divorce Process Leave a Comment

When dissolving a marriage, many people think of intense courtroom trials. That, however, isn’t the only option. Other tools provide alternative routes. 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.

This approach 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 cases.

Are divorce mediation agreements legally binding?

The short answer is no, mediation is not legally binding. You go through the process, but if the ultimate decision is unsatisfactory, terms aren’t forced on you.

At the end of the day, both parties must agree to the conditions on their own.

Mediators don’t pass judgment, they’re only present to grease the wheels and help the spouses reach agreements on the issues at hand. A judge ultimately must sign off on any divorce decision, but may not if a deal skews too far to one side.

Once official, then it becomes legally binding.

How Long Does It Take?

How long mediation takes varies greatly from one case to the next. It is, however, usually much faster and more streamlined than a lengthy trial. Most mediations only last a day or so.

They’re also often easier to schedule and fit into your life rather than taking what a court gives you, so they can be much more convenient. In most situations, mediations tend to be less complicated than cases that go to trial.

As with other cases, the more complex and contentious, the longer and more in-depth the process. Shorter cases also often mean lower costs, a nice bonus.

Related Reading: Dividing Debt in Divorce

Is Mediation Confidential?

One reason people often choose mediation is that it’s much more confidential. Cases don’t become part of the public record and conversations and communication between spouses stay private.

A professional code of conduct compels mediators to keep any information confidential and under wraps.

As with most legal matters, there are, of course, exceptions, like cases of child abuse or potential criminal actions that may cause harm. Still, it’s a behind-closed-doors affair and it’s easy to see why celebrities often opt for this route rather than a traditional court divorce.

Related Reading:  Are Divorce Records Public?

How Does It Differ From Arbitration?

Arbitration is another form of alternate dispute resolution. It’s similar to mediation in some regards but different in others. Again, both parties sit down with an outside third party instead of going to court. While spouses work together in mediation, arbitration can resemble a trial.

Both sides present arguments and evidence, and in these cases, the arbitrator has the power to make rulings.

Entering into the arbitration process is voluntary, but unlike mediation, the resulting judgments are legally binding.

Related Reading: Is Arbitration the Right Choice For You?

When Does Mediation Work Best?

Because mediation is not legally binding, it works best 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.

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 to reach a common goal.

Related Reading: How to File for Divorce in Washington

How to Choose the Best Mediation Style

Within the larger category of mediation exist several 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 on your circumstances and the specifics of your case. With the differences, there are situations where each may be the ideal fit.

Evaluative Mediation

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

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

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

In these situations, it’s common for the facilitator to put the spouses in separate rooms and bounce 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 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.

Facilitative Mediation

When it comes to this mediation style, the third party plays a less impactful role. He or she guides spouses through the process and makes sure they understand their options and the impact of their choices. Ideally, the 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 hash out and agree to terms on their own.

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

Transformative Mediation

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 serves as more of an enabler, helping the two parties to grow and change—to transform.

It primarily focuses on mending fences and repairing a damaged relationship rather than reaching a definitive resolution. This can alleviate some pressure on clients, but it often leads to a longer process and fewer 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 the kids.

Related Reading: Ways to Rebuild Finances And Credit Score After Divorce

Why Choose Mediation?

So, the question of the day is why choose mediation?

The quick answer is that it makes divorce quicker, cheaper, and easier. At least if you and your ex can play nice and act like adults.

Mediation also tends to be much less stressful. Instead of the pressure of appearing in court, presenting your case, and waiting for a decree, this is two people in a room working out an arrangement that, ideally, everyone can live with.

Mediation doesn’t work in every case. Some divorcing couples try but eventually wind up in court regardless. It’s not right for every situation, but if you can make it work, sometimes mediation is the optimal choice to end your marriage.

Related Reading: The Most Common Reasons for Divorce

Should You Hire A Lawyer For Mediation?

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

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 ensure 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 many 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


One of our founding partners, Rick Jones, has a regular guest spot on the KZOK 102.5. On the air, he takes family law questions from listeners, including ones related to this topic.

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