Divorce Mediation – Overview
Divorcing couples must file for divorce. However, it is no longer necessary to follow the traditional path of litigation to resolve the terms of a divorce. Today, many couples turn to mediation to resolve their disputes and agree on the terms of their divorce, a process that bypasses the courts.
Mediation is a process in which an impartial third-party mediator facilitates the resolution of a dispute by promoting a voluntary agreement between the parties. The mediator encourages communication, promotes mutual understanding, focuses the parties on their interests, and seeks creative solutions to problems that allow the parties to reach their own agreement.
The following explains what divorce mediation is and how it works.
Goals of Divorce Mediation
Whether mediation is agreed to voluntarily by the parties or court-referred, the goals of the mediation process with respect to divorce are to:
Create an equitable, legally sound, and mutually acceptable divorce agreement;
Avoid the expense and trauma that often accompany litigation; and
Minimize hostility and post-dissolution controversy.
Why Resolve a Divorce Through Mediation?
Divorcing couples are often frustrated by the costs and delays associated with an adversarial and overburdened court system. These couples are finding ways to play a bigger role in determining the details of their divorce. The judiciary has also recognized the importance of developing alternative dispute resolution methods outside of the courtroom. Court-related mediation programs have become popular throughout the country.
Nearly all states require mediation in child custody disputes, and many state court systems provide services such as early conflict intervention, reconciliation services, community dispute resolution centres, educational workshops for divorcing couples, mediation, and settlement conferences. Today, mediation, voluntary or court-ordered, is the predominant form of dispute resolution for divorcing couples.
Advantages of a Mediated Divorce
Mediation is a forum where a neutral mediator facilitates communication between the parties to reach a compromise, understanding, and settlement. Mediation is particularly suited to divorce and other family proceedings as there is likely to be an ongoing relationship between the parties, especially if minor children are involved. Many divorcing couples find that mediation allows them to avoid the high financial and emotional costs associated with a contested divorce. Because the resolution is usually faster, mediation costs less than litigation.
Mediation also allows couples to avoid litigation risks, protect their confidentiality, and reduce stressful conflicts. Mediation can also protect children from the pain of parental conflict. As the parties work to create their own agreements, couples who mediate a divorce are often more satisfied than those who go to court. Parties also tend to be more likely to honour an agreement they themselves have created, compared to a post-litigation order made by a judge. Through mediation, couples can acquire skills that will help them resolve future conflicts.
Divorce Mediation Isn’t for Everyone
While mediation is considered by most parties to be an excellent alternative to the traditional judicial approach to divorce, it may not work for everyone. It is not as effective when one party cannot fully and fearlessly express its views, or when the parties refuse to compromise or mediate in good faith. Some people worry that some mediators may not be able to handle the complex financial issues associated with some divorces.
The Divorce Mediation Process
In many states, divorce cases go to court or end in mediation based on a written agreement between the parties. If the court sends the case for mediation, it notifies the parties. In most states, parties have the ability to object to mediation on reasonable grounds, such as domestic violence.
