What to Expect in Divorce Mediation

Posted: 17 September, 2019

Divorce mediation cannot force you into something. Let’s just get that out of the way now. The court may require that you attend family mediation, that doesn’t mean you have to agree to a single thing there.

Of course, if you go in with that attitude, you are looking at a long, drawn out, and outrageously expensive divorce.

Taking advantage of a neutral 3rd party’s expertise can help save you thousands. If you and your soon to be ex-spouse can settle everything in mediation beforehand, then you can file an uncontested divorce. Even outside getting an uncontested divorce there are many reasons to choose a mediated divorce.

Divorce Mediation Definition

A formal mediation is when a person that has no stake in either side of the case helps you agree on legal matters. It may be through a court program, or the parties may choose to use a private mediator. A private mediator is more expensive than a court mediator, but many believe that the private mediator will be more autonomous.

In the context of divorce, mediation could address any or all of the following:

  • splitting up physical property
  • allocating retirement accounts
  • division of debts
  • child legal custody
  • child physical custody
  • alimony

Both divorce attorneys are usually familiar with the mediator. Your divorce lawyer and your spouse’s lawyer must agree on who they want to use for this process. Word will get around if a mediator favors certain divorce attorneys. A savvy divorce lawyer will avoid these mediators.

Marital Settlement Agreement

The marital settlement agreement is an agreement reached through divorce mediation or by the parties themselves. Generally, the parties try to come to an agreement before or just after divorce proceedings start. If that is the case, then both divorce attorneys draft the agreement.

If you both sign the agreement before starting divorce proceedings, then the agreement gets sent with the petition. Since you don’t have to go to court, the divorce is an uncontested divorce. The divorce may start out contested then become uncontested through divorce mediation. That is when both parties sign an agreement on all issues.

An uncontested divorce means you do not have to go through a long, drawn-out final hearing.

An agreement reached through mediation is a marital settlement or a mediation agreement. If you or your spouse won’t settle, then it is a partial agreement. During the final hearing, the judge only hears the issues on which you still disagree.

Why is Autonomy Important in a Divorce?

Autonomy is the freedom to choose without someone pressuring you. If you or your spouse feel pushed into a decision during divorce mediation, you may not come to an agreement. You may resent the process because you felt pressured into making a decision you did not want to make.

It is important that both parties feel that they made hard decisions that, while they may not have wanted initially, are the decisions that are best for the children and both spouses. Sometimes, it’s hard for spouses to see beyond certain issues, and a mediator is someone who can help with these decisions.

The Fine Line Between Autonomy and Pressure During Mediation

For those who have trouble with agreeing, divorce mediation may be used to help the parties make a decision. This is not pressuring you to make that decision. A mediator may make suggestions or ask questions to help you come to an agreement. But a mediator may not pressure you into making a decision. Because of divorce, even if both parties want it, is so emotional, many cannot see past their emotions to make a sound decision.

The questions asked by a mediator are designed to help both parties focus on the best interests of all involved, especially the children. For example, a couple may have a marital home with a large mortgage, and the spouse who earns less wants to keep the house. This happens to be the spouse who also wants the majority of physical custody, and the couple has agreed to a time-sharing schedule. A mediator may ask pointed questions about that spouse’s ability to pay for the home. This helps that spouse see that keeping the house is not in his or her best interest, nor that of the children. That spouse could end up in foreclosure, and the children could end up with the other spouse, or in a worst-case scenario, on the street.

In this case, it may be better to let the other spouse have the house, or if neither could afford it by themselves, to sell the house and split any equity. In a case where there is no equity, then both spouses could split the costs based on their incomes. For example, if the husband makes 60 percent of the income, he pays 60 percent of any uncovered costs of selling the house.

Mediators Will Not Make Decisions For You

In the same situation, it is important that the mediator not tell the couple what to do with the house. It is his or her job to ensure that both parties understand the ramifications of keeping the house and what could happen in the future. This allows both spouses to make an informed and rational decision about keeping or selling the house. The fine line comes in when the mediator has to decide how his suggestions come across to the spouses. Every person requires a different approach. Each person responds to mediation differently because they handle the stress in their own way.

This works the same way when one or both parties think the other should pay spousal support. Most states do not have a set formula for spousal support. So neither your divorce lawyer nor the court can plug numbers into a formula based on income as they would with child support.

The court has several situations to take into consideration. These include the length of the marriage, the ability of a spouse to pay, and the needs of the other spouse.

If the marriage is not long enough for alimony, the mediator may tell you that it is unlikely that the court would order alimony, so it’s best that they agree that neither spouse will pay alimony. This is hard pressure. Yet it is also based on what would most likely happen if the couple cannot come to an agreement on alimony. In this case, the pressure is a good thing. It serves as logical grounding for both parties in an emotionally charged scenario. Remember it will save them money and the hassle of going to a final hearing on this issue.

The Most Common Mediation Tactic – Reframing

Divorce mediation can be an invaluable tool in the divorce context. It allows each party to have their say and craft a solution that may not be ideal for each party, but can still work well. Judges have no experience with your family. That lack of knowledge may lead to disastrous results for you and your children. How can they understand what is best from the court papers and prepared speeches? Instead, spouses can create their own, uniquely tailored solution for their situation.

One of the many methods that mediators use in meditation is known as reframing. It works well for couples that having problems seeing the other side’s point of view. By changing your perspective, you are better able to understand why your former spouse is acting as he or she is. You can figure out why he or she wants certain things in the divorce. That understanding leads to resolution.

Reframing: A Problem-Focused Approach

Mediators help work out conflicts between two parties. They cannot force an agreement, but they can encourage spouses to come together to create their own agreement. This is extremely difficult when both sides believe that their viewpoint is the correct one.

To combat this problem, mediators often attempt to switch the focus from a spouse’s self-interests to the problem at hand. For example, instead of thinking about when the parent wants to have the child, the parent should be thinking about what is best for the child. Would the child benefit from time spent with the other parent? When would visitation work from the standpoint of the child’s schedule?

You can also try to switch the focus to the underlying problems as they relate to why the parties are not able to agree. For example, does the other spouse simply want to keep your mother’s china cabinet because you want it? Is there some way that you can deal with that selfish motive? Your mediator should be able to help you in those tricky situations.

Reframing is considered both an art and a science. Mediators use both words and actions to alter someone’s perspective. Timing is critical in the negotiation context. It is also vital that the mediator avoid manipulating the facts of the situation as well. Such a practice is not only unethical, but it can cause unfavorable results and even resentment in the mediation as well as in the future.

Why is Reframing Necessary?

Everyone has their own views and opinions. These develop from years of teaching and experience. Past beliefs, ideologies, input from friends and family, socioeconomic status, and many, many other factors go into developing your opinions. Our views become entrenched in our very being, and they can be impossible to alter or change. Your ideas regarding family and what is right and wrong are often particularly ingrained in your beliefs and priorities.

It can be difficult to see an experience or decision from someone else’s eyes. You do not share the same knowledge, experience, or emotions that the other person has. However, to understand why they want what they want in a divorce mediation, you have to put yourself in their shoes. Reframing allows the parties to consider what is driving their spouse and discover the real cause of conflict and tension.

Using a mediator is both easier and cheaper than hiring a divorce lawyer to fight it out in court with your ex-spouse. Divorce attorneys can still come in handy, especially when there are large sums of money or other assets involved. It just makes good financial sense to try and work out the agreement first before you turn to the expensive route of drawn-out court hearings.