The Post-Divorce-Parenting Glossary

• What is divorce mediation?
• What divorce-related issues can be mediated?
• What are the benefits of mediation compared to litigation?
• What are the disadvantages of mediation in a divorce?
• How is mediation different than divorce arbitration?
• What happens during a divorce mediation session?
• Who can be present during divorce mediation?
• Is an agreement in mediation a binding agreement?
• Is an attorney required for parties who wish to settle via divorce mediation?
• Is mediation possible for child custody disputes?
• How do people ensure that they will mediate issues before attempting to go to court after the divorce?

What is divorce mediation?

Divorce mediation is an alternative form of dispute resolution, in which a neutral third-party professional, the mediator, attempts to help the disputing parties resolve their differences via collaboration and negotiation, so that a settlement agreement and subsequent divorce decree can be finalized with little or no litigation. 

What divorce-related issues can be mediated?

During a divorce, many issues can be mediated.  Distribution of property, child custody, visitation schedules (parenting time), child support, spousal support, and other issues are all open to divorce mediation.  If certain issues cannot be resolved via mediation, they can be left open and dealt with via arbitration or litigation.  

What are the benefits of mediation compared to litigation?

Mediation is a great tool for parties seeking a collaborative divorce.  The benefits of mediation are a quicker divorce settlement, a less expensive divorce, more private divorce, and a divorce that is lower in conflict.

With regard to the time and cost savings, a statistic provided by mediate.com states that in 2005, "the average mediated case cost $3000 and was settled in 90 days. In turn, the average litigated case in the courts cost $15,000 and took 18 months to settle." ¹

With regard to conflict among divorcing or separating parents, Dr. Robert Emery did a 12-year study on how mediation affects parental relationships over the course of the children's childhoods.  Because of the reduced conflict, the results that Dr. Emery found in his 12-year study showed that, "divorcing parents who used as little as 5 hours of mediation to settle their child custody case, rather than a litigated divorce process, caused nonresidential parents to see their children much more often 12 years later, and 28% of nonresident parents who mediated saw their children weekly at the end of the 12-year-period, compared to 9% who litigated." ²

Mediation is also private, while litigation is public.  Any issues that come out during litigation risk public exposure.  For example, if a party has unreported income and that comes out during litigation, a family court judge may be obligated to contact the IRS.  Mediation is private and confidential.
 

What are the disadvantages of mediation in a divorce?

One of the biggest disadvantages to mediation is that a person can back out of whatever they had agreed on during mediation.  For example, two parties can agree on a resolution on a new visitation schedule during mediation.  Then when they adjourn and talk to others, such as friends or family, lawyers, or other people, they can simply change their mind.  Until the agreement is put in writing, it is not legally binding.

For this reason, mediation is really only effective if both parties are likely to commit to what they agreed on.  If one party is the type of person to change their mind easily, mediation is not likely to work, and a more binding form of dispute resolution, such as arbitration should be considered.

How is mediation different than divorce arbitration?

Mediation is non-binding.  Arbitration is binding.  But there are other differences, as well.  If parties do agree to have their dispute settled via arbitration, they are not the ones who are deciding what will happen.  A third-party person is deciding.  That third-party person is called the arbitrator.

Essentially an arbitrator is like a personally hired judge that will decide the issues he or she is asked to decide.  Arbitration has many advantages over litigation when both parties are amicable enough to accept arbitration.

What happens during a divorce mediation session?

Unlike court litigation, mediation is a very informal, casual event.  A mediator is a neutral trained individual who will help each person confront issues and work through obstacles that may be preventing them from resolving disputes on their own.  In this respect, mediation becomes a great alternative dispute resolution tool to use if parties are unable to resolve issues via direct communication.

Mediation can involve a number of sessions.  The number of mediation sessions necessary depends on the nature of the dispute being addressed, although one to five sessions is typical.  Because some issues require time to discuss ideas with other people, such as accountants, attorneys, or family, it is common for mediation sessions to adjourn and allow each person to think about the ideas presented.

In many cases, mediation can significantly reduce post-divorce conflict and result in a happier life for all involved -- especially children of divorce.  While a mediator does not work for either party, they can present ideas that neither party had considered.

Who can be present during divorce mediation?

Many parties may feel uncomfortable discussing issues without the presence of other people that can help them during the mediation. For example, a person may wish to have their accountant, a child psychologist, or even a family member at the mediation session.  This is allowable, but only if both parties agree to it.

Is an agreement in mediation a binding agreement?

One of the most important attributes about mediation that divorcing or separating people should know is what determines whether or not an agreement is legally binding.  Legally binding means that the agreement becomes an obligation.  It cannot be withdrawn or avoided, and if it is, a court can enforce the agreement.

Mediation results in a non-binding agreement.  This means that at first, the agreement between each party can be withdrawn or avoided.  It is simply a verbal agreement.  If a Memorandum of Understanding from the mediation is signed, that document will become a legally binding agreement.

The fact that mediation is non-binding has good points and bad points.  It is good that each party should feel free to discuss ideas in an unguarded manner, without worry that it will affect their situation.  The problem is that the non-binding nature of a mediated agreement can be used to delay the resolution of a dispute.  If parties are not willing to abide by a mediated agreement, they essentially nullify the benefits of it.  Mediation can be used to delay litigation.

Is an attorney required for parties who wish to settle via divorce mediation?

Having an attorney is recommended.  Family law is simply too complex not to have an attorney to help.  However, a "mediation friendly" attorney is best for divorced people who do not wish to have an adversarial post-divorce relationship.  For divorced or separated parents who wish to avoid a high-conflict parenting lifestyle, avoiding litigation should be a goal for each party.

An attorney should be able to help each party review mediated agreements before they become binding agreements.  As stated above, a mediated agreement will not be binding until it is signed, at which point it becomes a Memorandum of Understanding.  Furthermore, an attorney will be able to explain the legal significance of any mediated agreement so issues do not get signed without a party fully understanding the impact it will have.

Note that some attorneys oppose mediation.  It is important to avoid attorneys who do not have goals that align with yours.  If an attorney is in the mindset that mediation means lost business for them, do not use that attorney.  A "mediation friendly" attorney will be able to help prevent litigation -- not seek ways to cause it.

Is mediation possible for child custody disputes?

Mediation is a viable option for child custody disputes.  Not only does it save money in many child custody cases, but it often lowers conflict, as well.  This makes mediation an important tool for divorced or separated parents who wish to have a child-centered divorce.

Child related issues that can be settled via mediation include child support modification and visitation (parenting time) disputes.

How do people ensure that they will mediate issues before attempting to go to court after the divorce?

If a divorcing couple wishes to avoid future litigation, there are stipulations that the can put in the settlement agreement and divorce decree so that unnecessary court visits are avoided.

A mediation clause in the divorce decree will be one of the first steps.  If a mediation clause exists, it will basically require that the parties first attempt to mediate before going to court.  The caveat with a mediation clause is that if something occurs that requires a quick decision, a mediation clause can slow the process down.  If a party takes the other to court without first abiding by the mediation clause, the judge may simply require the parties to attempt to mediate first, wasting time and money.  However, if both couples are willing to mediate disputes, a mediation clause can be very helpful.

An arbitration clause is another dispute resolution method that can prevent litigation.  Many divorce decrees will require arbitration if mediation fails.  If both mediation and arbitration fail, then litigation is the next step.

Sources:

1.  "What Is Divorce Mediation?" What Is Divorce Mediation? N.p., n.d. Web. 20 Dec. 2013. <http://www.mediate.com/articles/jamesb1.cfm>.

2.  Emery, Robert E. "Emery's Divorce Mediation Study." Emery on Divorce. N.p., n.d. Web. 18 Nov. 2013. <http://emeryondivorce.com/divorce_mediation_study.php>.

mediation, divorce, litigation, arbitration, party, binding, child