Divorce Mediation FAQs

At what point should we use mediation?
As early as possible and before either spouse retains an attorney. It is best to start mediation before the actual physical separation rather than waiting. For example, a mediator can help create a good temporary parenting arrangement, calculate the amount of child support, and assist in determining responsibility for the payment of rent or mortgage.

How much does mediation cost?
Mediation rates vary, as in any profession, and the final costs depend on the complexity of your divorce and the part of the country you live in. Most mediators charge an hourly rate. The couple also pays a court filing fee and attorney fees for drafting the final paperwork. The sum of all these fees amounts to 5-10% of the average total cost of a litigated divorce, depending on its complexity and the part of the country in which the couple lives.

How long does the process take?
An average mediation requires less than 5 hours of mediation time. The couple, however, controls the speed of the process as a whole, and the period over which their mediation sessions are scheduled.

An adversarial litigated divorce normally takes one to three years to arrive at a settlement. In contrast, mediation clients are able to file a petition for dissolution of marriage once they both sign the agreement. A court date for the dissolution occurs 5 to 6 weeks after filing for the dissolution.

How do we choose a mediator?
Carefully. The success of your mediation will be greatly affected by your choice of this professional. Before hiring the mediator, ask the following questions:

Why do we need a professional mediator?
There are two main reasons that make it close to impossible to mediate your own divorce settlement.

First, the end of a significant relationship involves such intense emotional turmoil that it is difficult for two individuals to resolve issues fairly without professional assistance.

Second, most individuals do not have the specific knowledge necessary for making informed decisions in divorce-related areas. For example, a couple may think that pension benefits automatically belong only to the person who has paid into it, not realizing that the law in their state considers pensions a marital asset. Similarly, a spouse might waive rights to an asset without even realizing it has considerable value.

What makes a good mediator?
Unfortunately, every profession has its share of practitioners who are not skilled at what they do. Your mediator is not well-skilled if he or she:

What makes a good mediator one of the best?
Beyond their basic mediation skills, the best mediators either have a good understanding or thorough knowledge of the following:

Will a mediator make any decisions for us?
A mediator does not make decisions for you; he or she facilitates as a neutral third party. The most valuable long-term benefit is that a mediator helps the couple to make decisions that each knows is fair. This informed decision-making component is one reason why mediated agreements have a high compliance rate.

Does a mediator take sides?
No. The ability to be impartial is the most important skill of the mediator, and is an important reason why people need to choose a competent one. A trained mediator is able to put his or her biases on hold in order to help the divorcing couple.

What’s wrong with do-it-yourself divorces?
Working out a settlement with someone you are divorcing is difficult and may lead to future disputes. If any of the following apply to your situation, you are better off seeking professional assistance:

What if we’ve already agreed on how to split everything?
It is rare that a couple can think of everything they need to consider, such as future support modifications or real estate responsibilities. Frequently, there are serious omissions that, by law, must be included in a divorce agreement. There aren't any statistics on do-it-yourself settlements, but it is safe to say that they generally do not have good track records.

Does a mediator meet with the children?
Typically, the mediator does not meet with the children. Instead, the mediator meets with both parents to help the parents create a parenting arrangement, which is in the best interests of the child. A knowledgeable mediator – one who is informed about how divorce affects a child – is invaluable in helping families create a healthy post-divorce co-parenting arrangement.

Do we still need attorneys?
Once you and your spouse have reached agreement on all issues, then you will only need an attorney to complete the final paperwork for filing. If an isolated issue does require attorney involvement or even litigation, you have still saved considerable time and money by mediating all other parts of your agreement.

Rarely does a mediator require a client to retain an attorney, but the majority of mediators recommend that each client consult with an attorney at some point during the mediation, especially prior to signing the mediated agreement. The attorney’s attitude toward mediation is critical: he or she should be supportive of mediation.

Will I get a better settlement if I go to court?
Men and women who have appeared in a divorce court action are likely to answer “no” to this question. They know that you rarely get a chance to tell your entire story in court, and when you do, the parts you think are essential often are not allowed into evidence. The court decision will most likely hinge on technical aspects that seem absurd to someone not versed in the law.

Most people go to court with one idea: they believe the judge will decide in their favor. Unfortunately, this view of the judge as a kind, fatherly protector may not be what awaits you in court. Many divorce court judges share the sentiment that if both people walk out of court with their head down and looking sad, then a pretty good judgment was made. Since there is so much to lose, the court tries to see that neither side loses too badly.

The other reality is the appeal process. If you litigate and your spouse feels ripped off, expect an appeal – which means another trial, more money, and, of course, the emotional trauma that seems to have no end.

Getting your legal fees paid by your spouse if you “win” is another myth. In most divorce courts, this is simply not true. Whether you win or lose, you will most likely be paying your own legal fees.