What Does A Mediator Do In A Divorce?

In divorce mediation, the mediator typically does the following tasks:

1. Gathers information about your marriage
2. Gets a confidentiality agreement signed
3. Understands the issues the spouses disagree on
4. Sets the agenda
5. Starts the formalities
6. Engages the spouses in joint and private discussions
7. Helps the spouses negotiate
8. Drafts (and perhaps files with the courts) a divorce settlement agreement and maybe a parenting plan too

1. Gathers Information About Your Marriage

Before the mediation begins, the mediator or his/her assistant may query both spouses about their marriage, family, and the problems that have led to the separation. They may be asked to fill up a questionnaire or the mediator can ask them to write a statement that contains all the basic information along with the problems that need to be resolved. The sticky points in most divorces relate to alimony, child support, child custody, and property division. If you have an attorney, your attorney will have compiled this information and will likely transfer that information to the mediator at mediation.

2. Gets A Confidentiality Agreement Signed

The mediator is likely to ask both spouses to sign a confidentiality agreement that states that both parties must not disclose any information to anyone except, of course, to their divorce lawyers.

There are a few exceptions to the confidentiality rule though. For example, unreported cases of child or spouse abuse must be disclosed and reported to the authorities, as also cases of fraud or theft, or any illegality discovered during the mediation. Written agreements that already are in the public domain are also exempt from the confidentiality rule.

3. Understands The Issues The Spouses Disagree On

Once the basic information is in, the mediator analyzes it and makes a list of things that the spouses do not agree on. These are the issues why the spouses desire mediation, and so, these issues form the heart of the mediation process.

Note that some states mandate mediation if the case is contested.

4. Sets The Agenda

Once the mediator analyzes the issues that need resolution, he sets the agenda for the process.

5. Starts The Formalities

When the process begins, the mediator formally introduces the attorneys of both parties to each other and to each other’s client, lays down the agenda, specifies the rules, explains the goals of mediation, and generally motivates both parties and their lawyers to work together amicably. He then asks both parties to make their opening statement. Each spouse’s opening statement explains his/her side of the story and what he/she intends to achieve from the mediation.

6. Engages The Spouses In Joint And Private Discussions

Usually, after the opening statements are made, the mediator urges both parties to start a joint dialogue in his/her presence and discuss the unresolved issues. After this joint meeting, both parties usually meet the mediator privately as there may be some personal and sensitive issues they may not like to air in a joint discussion.

During these sessions, the mediator judges the strengths and weaknesses of each party’s contentions and, in an objective manner, explains to them how the law will impact their goals, and how the issues can be resolved.

7. Helps the Spouses Negotiate

Once the mediator knows what each side wants and can give, he/she brings the parties together in a joint discussion so that they can negotiate directly with each other in his/her presence. The mediator starts the negotiation stage only after he is certain that both parties are close to a settlement.

8. Drafts A Divorce Settlement Agreement And Maybe A Parenting Plan Too

After the parties are in agreement about all issues, the mediator, or the attorneys, drafts a divorce settlement agreement (and maybe also a parenting plan). The point of a mediation is to have the parties sign the agreement during mediation. The agreement then goes to the courts for approval, and once it is approved, the divorce is completed.