The divorce mediation process involves:
- Hiring a mediator
- Preparing for mediation
- Making the statements and participating in caucuses
- Reaching an agreement
Most marriages in our country are dissolved by the process of ADR (Alternative Dispute Resolution), mediation being the most common form of ADR.
The mediator is either an evaluator or a facilitator but without any decision-making authority. He/she encourages the spouses to communicate clearly, promotes understanding of each other’s views, and supports creative problem-solving – all of which facilitate the process of reaching an agreement between the spouses. The evaluator mediator does not suggest a solution – he/she fleshes out the finer points for discussion, possibly voices his/her opinion on certain matters, and persuades the parties to reach an agreement. The facilitator mediator helps the spouses discover a solution but leaves the impact analysis of the solution and the final decision in the hands of the spouses.
Mediation is a quick, legally sound, affordable, less traumatic, confidential, informal, friendly, and mutually acceptable divorce agreement that is not prone to judicial delays.
Mediation can be mandated by the court or it can be voluntary. It is generally suitable for spouses who have minor children and/or spouses who are likely to have a friendly or continuing relationship after the divorce. That said, mediation may not be effective when one spouse fears the other and therefore cannot freely express an opinion, or when one party acts in bad faith.
Here is how the mediation process works:
Hiring a Mediator
If the mediation is court-mandated, the courts may appoint a mediator, or they may sometimes allow the spouses to agree upon and hire a qualified mediator. If the mediation is not court-mandated, the spouses themselves select and appoint a qualified mediator after mutually agreeing on one. Of course, each spouse’s family law attorney is there to help out during the selection process.
Preparing for Mediation
Almost always, spouses exchange financial and other information before mediation takes place. Sometimes, this happens through a formal discovery process if a case has been filed with the court, and sometimes, spouses will simply agree to exchange information voluntarily outside the litigation process. In most cases, both spouses and the mediator meet, and the mediator lays down the rules of mediation and explains the processes to the spouses and their attorneys. Then the necessary agreements are signed and the initial formalities are completed. If the mediation is court-mandated, the rules are included in the court order. Note that when the mediator holds a meeting with both the spouses together, it is referred to as a “general caucus.” When the meeting is held with just one spouse, it is referred to as a “private caucus.”
Making the Statements and Participating in Caucuses
The mediation process then kicks off and each spouse, or the spouse’s family law attorney, tells the spouses story and position. Then the mediator identifies the issues and begins the negotiation process.
If the spouses are hostile, the mediator can engage each spouse in a private caucus. In fact, this is the most normal way of negotiating during mediation, with each spouse in a different room. Almost always, people are more comfortable negotiating this way. Understandably, there is a lot of to-and-fro communication between the mediator and each spouse when the caucuses are private.
Reaching an Agreement
After all, the issues are understood and the doubts cleared, if the spouses feel that they can reach an agreement on matters like child custody, visitation rights, alimony, child support, etc., then they go ahead and negotiate until they sign a full settlement agreement.
In some cases, the spouses do not reach an agreement during mediation. If the spouses do not agree, the mediator can urge them to attend another mediation session, or the spouses decide to go ahead with litigation and toward trial.
As mediation is a confidential process, there are no records of the session – only the agreement reached by the spouses is preserved.