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Divorce Mediation: Definition, Pros & Cons (2023 Forbes Guide)

Divorce Mediation: Definition, Pros & Cons (2023 Forbes Guide)

What Is Divorce Mediation?

Divorce mediation is for couples who seek an efficient, yet fair, divorce process. Mediation is a collaborative process that allows individuals to control the outcome. The mediator is a neutral, third-party professional who keeps spouses focused on the goal of a fair outcome, not battling over past resentments.

During divorce mediation, the mediator guides couples in addressing all the issues associated with divorce, including asset division, custody arrangements and spousal and child support.

Couples often choose divorce mediation because mediation is faster, less expensive and less contentious than a traditional divorce process. Reducing the stress and trauma of the divorce process itself may ease co-parenting after divorce, as well.

Mediation is often a “one-stop” option for couples, as the mediator prepares the full divorce settlement agreement and provides the paperwork necessary for the divorce to become final with a court.

How Is Divorce Mediation Different From Traditional Divorce?
Many say one of the biggest pros of divorce mediation is that it is fundamentally different from a traditional divorce process.

Divorce mediation is a non-adversarial process, unlike traditional divorce, in which lawyers represent spouses against each other.

In mediation, spouses work together with the help of a neutral third party to reach agreements that make the most sense after considering their actual family circumstances.

With divorce mediation, couples often finalize their divorce without making court appearances. Divorce mediation also takes less time than the traditional divorce process. On average, traditional divorce takes families at least a year, and potentially much longer.
The mediation process, on the other hand, can be completed as quickly as couples choose.

Another pro of mediation is that spouses have flexibility to cost effectively reach agreements when they have complicated circumstances. For example, spouses who own a family business might want to craft a creative arrangement that allows both spouses to stay involved in the business in the future. Working with their mediator and other business advisors, such visions can be turned into the appropriate legal documents to protect both spouses.

Alternatively, the traditional divorce process is usually designed to sever all assets at the time of the divorce. While this might be a desired outcome in most cases, your family might want or need more flexibility due to unique circumstances.

Mediation also allows for more creative parenting agreements when courts tend to default to every other weekend and one night per week arrangements.

Will You Still Need a Lawyer?

Mediators advise their clients that each of you always has the right to hire a lawyer and most encourage and even require each spouse to hire one. Those attorneys provide legal advice and review the final agreement before it is filed with the court. However, those attorneys have minimal involvement and are not involved in the negotiations and make no court appearances. This is a huge pro of the mediation process that saves couples thousands of dollars.

Even a failed attempt at mediation can be cost effective. If couples abandon mediation and hire litigation attorneys, they will find that they are more prepared and likely already have some of the information the attorney needs to move the case forward quickly. The attempted mediation will still save attorney’s fees for each of them.

What Is the Role of the Mediator?

The role of a divorce mediator is to facilitate communication between divorcing spouses and to guide them in deciding:

  • Which assets have to be divided
  • How the assets will be divided
  • What custody arrangement is appropriate for the family and how to turn that arrangement into legal language for the settlement agreement.
  • Whether spousal support, alimony or child support is appropriate, and how to determine the amounts.

A mediator should also inform you of how the divorce process is conducted in your state, if you were to choose the traditional method of divorce. However, the role of the divorce mediator is not to represent either one of you in court or to argue on your behalf. Your individual lawyer can also provide guidance about the divorce process and what potential outcome you would have if you chose not to mediate.

A mediator is not a judge or arbitrator in your case. In other words, they do not make the final decisions for you. This might be seen as a potential con of the process. Couples who are hoping someone else will tell them what their decisions should be will likely be disappointed by mediation. A mediator will not make a decision for you, but will help you and your spouse identify options and so you can decide what is best for you.

Discussions in front of a mediator are confidential. If one or both parties changes their mind during mediation and chooses to proceed with court, in most jurisdictions the mediator cannot be called as a witness for either spouse in court.

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