How the Divorce Mediation Process Works
Although each mediator has his or her own approach, most divorce mediations progress in a similar way. At San Diego Divorce Mediation and Family Law, the mediation process consists of a series of several sessions during which both parties will have the chance to address and discuss individual issues, with the end goal of reaching a mutually agreeable resolution on each matter. Here is a step-by-step outline of the general divorce mediation process.
- Getting to the Table. People stuck in disputes often fear each other and fear losing control of the outcome which can make them reluctant to suggest mediation or make any offer of compromise. Divorce is a uniquely personal conflict and overcoming the resistance to sit down can be half the battle. There is no mediation until both parties agree to mediate.
It’s just like the old Steve Martin joke – How can you be a millionaire and never pay taxes? First…get a million dollars.
This is where the importance of education comes into play. When parties educate themselves about the process of family law mediation, their fears abate and they understand why mediation has worked very well for so many hundreds of thousands of parties throughout the country. The need for education is the reason we spent so much time developing the unique and accurate content on this website. Once people understand that they get to keep control of the dispute in mediation, and that the process is confidential, much faster and cheaper than litigation, they get to the table.
- The Initial Session. At the first session, the mediator will provide an orientation about the process and will explain what the parties can expect. The mediator does not provide any legal advice at this stage but focuses on educating the parties about process. For some, the mediator will choose to host the parties independently for this initial session. The parties will also be asked to reflect on their goals for resolving the divorce and provide background information as to their marriage and family, and discuss the main issues facing the parties. Each party will be asked to speak and listen and the mediator establishes his/her role of neutrality from the first moment they all meet. The mediator will also take care of the administrative side of things, such as asking both spouses to sign an agreement that says they will keep everything discussed during sessions completely confidential and that everyone understands the mediator cannot disclose any of the proceedings – even if there is a court case later.
- Information Exchange. The parties are required by statute to disclose and exchange information so that you, your spouse and the mediator are as fully informed as possible about the facts of the case. The mediator is able to facilitate the exchange of financial documents such as tax returns and bank and mortgage statements and can also assist the parties by arranging for the exchange of information beyond that required by the laws. The mediator can also help you figure out how to access certain financial or other documentation that you may not know how to access.
During this stage, the mediator may first begin to discuss the general legal rules that might apply to your case. This can include the laws of your state dictating how a judge would divide your assets and debts, how child custody and child support would be decided, when and how alimony can be ordered, and laws dealing with related issues like taxes and life and health insurance. This general legal information will help you decide how to approach the issues in your case.
At this stage, the parties will also explore if they need the advice of outside neutral experts. In some cases, outside experts such as accountants and other asset valuation services, child custody counselors or other such professionals.
- Negotiation & Compromise. In later meetings, once the parties have exchanged all necessary information and documentation, discussions will focus on identifying and addressing each person’s most important needs and interests so that a compromise can result that both spouses can live with. In divorce cases, many issues need to be examined in light of each spouse’s interest, including the division of property and debt, child support and custody, parenting plans, and spousal support. The number of sessions required to successfully complete mediation on these issues varies greatly depending on the parties and their circumstances. The neutral mediator will help foster respectful and open communication in order to achieve compromise and agreement.
- The Agreement. Once the parties are able to reach a settlement on all issues in mediation (whether it requires two sessions or ten), the mediator will draft an agreement that memorializes all the terms. The proposed agreement is then reviewed by both parties and they are encouraged to have it reviewed by their independent attorneys. Once the parties and outside counsel have reviewed and accepted the agreement, the mediator will prepare the final Marital Settlement Agreement and file this with the court. These documents become part of the official divorce judgment, meaning that a court could potentially enforce them if either party is negligent. Generally, however, couples follow the agreements reached in the mediation process much more consistently than any other type of agreement – simply because the mediation process ensures that everyone is 100% comfortable with the terms.