Everything You Need to Know About Divorce Mediation

Per the CDC, there were 630,505 divorces in the United States in 2020. When you're getting married, no one plans on getting a divorce. However, there are times when things don't work out, and it's important to know your options if you decide to divorce.

Divorce mediation is an option that allows couples to amicably settle their differences, divide their assets, and determine child custody without going to trial. This process is often faster, cheaper, and more convenient than going to court.

If you’re considering using a mediator, you should know what to expect in advance to ensure the process goes as smoothly as possible.

Here’s everything you need to know about divorce mediation.

What is Divorce Mediation?

Divorce mediation is a process where couples getting divorced meet with a mediator to discuss important things like how to divide their money and property or who will gain primary custody of their children. People who use divorce mediation can work together peacefully and make the best decisions for both of them. 

Unlike divorce attorneys, mediators don’t offer legal advice. They cannot make legal decisions regarding your divorce. They’re there to help you and your partner resolve any issues related to your split. If this process is successful, your mediator will draft a divorce settlement agreement that establishes the terms of your divorce.

Divorce mediation is often a great choice for couples that want to split amicably and are willing to work together to come to a solution that works for both parties. In these cases, mediation can allow you to quickly get through the divorce process with as little conflict as possible.

Is Mediation Required Before Divorce?

Whether or not mediation is required often depends on your location. In some counties, you must go through mediation before taking your divorce case to court. In other areas, mediation is completely voluntary. In most cases, you can find this information by searching for your county, followed by “mediation requirements.” For example, if you live in Lee County, Alabama, you will search for “Lee County Alabama mediation requirements” on Google, Bing, or DuckDuckGo. 

Even in cases where mediation is required, some exceptions allow you to go straight to court, such as cases involving domestic violence.

When Is Mediation NOT Recommended?

Divorce mediation can be great for couples that want to remain on good terms and have more control over their final settlement. However, there are some situations where mediation is not the right solution.

Mediation might not be the best choice for you if you:

• Experienced domestic abuse

• Fear for your children’s safety

• You aren’t able to trust your spouse

• Your spouse doesn’t want to divorce

• Either you or your spouse is claiming fault

• Either you or your spouse has already hired an attorney

In these cases, you are likely better off going straight to an attorney who can help you navigate the divorce process and achieve the best possible outcome.

How Much Does Divorce Mediation Cost?

One of the advantages of divorce mediation is that it is generally much cheaper than going to trial.

However, the exact cost of divorce mediation is difficult to pinpoint as your costs will vary depending on several factors, primarily mediator fees.

A private mediator or mediation service will often cost anywhere from $2,000 to $10,000. This broad range is because mediator fees depend on your case's specific circumstances and complexities. This cost will also be affected by your mediator’s rate and background. For example, if your mediator is a licensed attorney, their fees will likely be higher.

If your mediator charges by the hour or session, your total cost will be higher if your case involves certain complexities, including:

• Dividing major assets like retirement accounts, houses, or businesses

• Disputes regarding child custody

• Child support disagreements

Anything that extends the mediation length will add to your total costs. You might also need to pay attorney fees if you consult a lawyer during the mediation process for additional advice.

If your divorce mediation is court-ordered, it will be much cheaper and, in some cases, free. For example, the court may order mediation if you and your spouse aren’t able to agree on a parenting plan.

Court-sponsored mediation services often offer rates that adjust depending on your income. Some are completely free. However, your options will depend on your state.

Who Pays for Mediation?

In most cases, both parties involved in the divorce will pay for mediation. This might include a 50/50 split, or the spouse that earns more money may pay a larger share of the total mediation costs.

There are no requirements regarding who pays for mediation. In some situations, such as if one person earns all of the income in a relationship, only one party will cover mediation costs.

Ultimately, it’s up to you and your spouse to agree on how much each party will contribute.

How Long Does Divorce Mediation Take?

Mediation takes much less time than going to trial, but the total length will depend on your and your partner’s ability to communicate effectively and reach an agreement. It will also depend on how many issues you have to resolve. For example, if you don’t have children, you don’t have to discuss custody or child support, which will significantly reduce your time in mediation.

Some couples may be able to resolve all of their issues in a single session, while others may require multiple sessions.

There is a minimum waiting period in some states before a judge can act on a divorce, and in these cases, mediation can accelerate the divorce process. For example, if your state has a six-month waiting period, your divorce can be finalized in six months if you agree to mediation during that time. Otherwise, the process would extend past six months if you go to trial.

How Long After Mediation is a Divorce Final?

After you and your spouse sign your final divorce settlement agreement, you must file it with the court. You’ll also need to fill out a document called a Notice of Entry of Order and serve it to your spouse.

In some states, there is a minimum waiting period before a judge can finalize your divorce. In these cases, you’ll have to wait for a specified amount of time before your divorce is final. Otherwise, your divorce will be final as soon as the judge approves your final papers and settlement agreement and enters a judgment.

Generally speaking, it often takes one to six months to finalize a divorce after mediation.

What To Expect During Mediation

No matter who you choose as your mediator, the process will be very similar.

Before mediation begins, you might be asked to talk with your mediator to provide background information about your marriage. You might also be asked to sign a confidentiality agreement and write a mediation statement outlining the issues you think must be resolved.

Mediation can take place online, but in most cases, it will take place in an office setting. Depending on how your mediator prefers to work, you might be in the same room with your spouse for the entirety of the session, or you might be put into different rooms to talk privately with the mediator at times.

Both you and your spouse will have the opportunity to make statements about your situation, and the mediator will likely ask follow-up questions for more information. The mediator will work with you and your spouse to understand which issues you do and do not agree on. Based on this, they will work with you and your spouse to help resolve these issues and facilitate a divorce agreement. If you and your spouse can resolve your issues, the mediator will write a divorce settlement agreement and, if applicable, a custody schedule. 

The settlement agreement will only include the issues that you and your spouse were able to agree on. If there are outstanding issues, you will need to resolve them independently in the future or take the case to court.

Some mediators will help you file your paperwork with the court, while others won’t, so be sure to ask mediators about this before hiring them. If the court approves your agreement, it will become part of the divorce decree, and the terms will become enforceable.

How To Prepare for Mediation

Prior to starting mediation, your mediator will likely talk with you to go over what you should expect and what you should bring with you once discussions begin.

There are a few basic things you should bring with you to ensure you’re prepared for whatever comes up during these discussions. This includes contact information for family members, financial institutions, and insurance brokers, financial statements, and payment.

If your mediator told you about any court documents you need to file or will need to file, you should make a list to ensure everything is in order before meditation begins.

How To Emotionally Prepare for Divorce Mediation

Mediation can carry a significant emotional toll. Even if you and your spouse are on good terms, the possibility of losing important assets or custody of your children can be stressful.

To mentally prepare for mediation, you should be open-minded and open to compromise. You should also decide beforehand which issues are non-negotiable for you and be ready to defend your position.

You should also get plenty of sleep the night before, dress comfortably, and bring snacks and drinks. Mediation sessions can be long, and ensuring you are well-rested and comfortable can help you avoid frustration.

What to Bring to Divorce Mediation

To streamline the mediation process, you’ll need to bring several documents, including:

• Bank statements

• Credit card statements

• Loan statements

• Insurance information

• Tax returns

• Vehicle registration and valuation

• Marriage license

• Your children’s birth certificates or adoption papers

• Prenuptial agreements

• Any court-issued documents related to your marriage

• Property deeds

• Retirement account information

This isn’t an extensive list of the documents you may need to bring, but it should give you a good idea of the information you’ll need to provide. Generally speaking, you should bring any documents related to your financial situation and assets and any information related to the issues you’ll be discussing.

For cases that involve negotiating child custody, you should also bring contact information of family members that may have contact with your children if you gain primary custody.

If you’re unsure of what to bring, ask your mediator what information they need for successful mediation.

What to Wear at Divorce Mediation

While there are no rules about what to wear at divorce mediation, you should generally dress professionally and comfortably. 

Though there aren’t any requirements, dressing too casually may give others the impression that you aren’t taking this process seriously, which could hinder negotiation efforts.

What to Ask For in a Divorce Mediation

If your divorce is taken to court, things may not work out the way you want them to, so you should use mediation as an opportunity to reach a fair and amicable agreement with your spouse.

This means that you shouldn’t make outrageous or unreasonable demands. Instead, with the help of your mediator, you should determine a fair way to split your assets with your spouse.

During divorce mediation, you should ask for fair and equitable division of:

• Property

• Assets

• Debt

• Insurance policy ownership

You should also work with your spouse to determine the best child custody arrangement. Similarly, you and your mediator should determine a fair amount of child and spousal support.

If you have non-negotiables, you should raise these issues with your mediator and spouse. Remember that you don’t have to agree on every issue in mediation, but you will need to resolve the remaining disagreements at some point before the divorce is final.

What if Divorce Mediation Doesn’t Work?

While divorce mediation can save you and your spouse a lot of time and hassle, it doesn’t always work out.

In the event that you are unable to reach an agreement with your spouse, there are several options you may choose to pursue.

One option would be to choose a new mediator and participate in a second attempt at negotiations. This can be a good option if you and your spouse weren’t happy with your original mediator but are still confident that you can come to an agreement.

Another option is to proceed with litigation, which can be a long and costly process. Take the time to consider whether moving forward with this option is in your best interest as well as that of your children before proceeding.

If you and your spouse each have an attorney, you can attempt to negotiate through each other’s lawyers. This is similar to mediation and can be a good option if your mediator helps you resolve most of your issues, but there are still a few key issues remaining.

Are Divorce Mediation Agreements Legally Binding?

Yes, divorce mediation agreements are legally binding. Once approved by the court, the terms of your agreement become legally enforceable, so be sure to carefully consider these terms before you and your spouse sign the final agreement.

Can a Divorce Mediation Agreement Be Changed?

It is possible to change a divorce mediation agreement. If both parties consent to the changes, a mediator or attorney may be able to make changes to the agreement.

If only one party is unhappy with the agreement, they may file a motion to vacate, which will invalidate the document. You will need to argue why the document should be invalidated before a judge, so hiring an attorney is likely necessary.

Major life changes can also justify the changing of a settlement agreement. For example, losing your job or moving to another state may inhibit your ability to maintain the terms of the agreement. In this case, you will need an attorney to help you change the terms of your agreement in court.

How to Find a Divorce Mediator

Like finding an attorney, finding the right divorce mediator will require you to consult with and compare several options.

To narrow down your choices, you can:

• Get personal recommendations

• Ask your marriage counselor

• Go to your local courthouse and ask for a list of court-sponsored mediators

• Search for online mediation services

It will help if you work with your spouse to choose a mediator you are both happy with and whom you trust to help you reach a reasonable settlement agreement.

Are Divorce Mediators Lawyers?

Divorce mediators sometimes have professional backgrounds as attorneys, but this isn’t always the case.

Unlike a lawyer, whose job is to represent one party, a divorce mediator is a neutral third party whose goal is to help both sides achieve a fair outcome.

Can the Divorce Mediator File for My Divorce?

Yes, a divorce mediator can help file your divorce paperwork. Not all mediators will do this, so you should ask beforehand if this is something they will help you with.

Resources for Folks Going Through a Divorce Using a Mediator

If you’re going through a divorce using a mediator, it’s important to understand your rights, what to expect during this process, and what steps to take after mediation.

Here are a few helpful resources to help guide you through this process.

Free Legal Answers

Free Legal Answers is a resource the American Bar Association (ABA) provides.

Using this tool, people going through a divorce can ask pro bono attorneys questions related to family law and receive answers at no cost. You can ask follow-up questions to clarify key issues and gain insight into state-specific divorce laws.

Visit: freelegalanswers.org

USA.gov

There are different types of courts at the state, county, and municipal levels. Using USA.gov, individuals going through a divorce can locate family courts in their state, county, or municipality.

Visit: usa.gov/state-courts

Library of Congress

The Library of Congress compiles several resources related to family law to help couples understand their rights and what to expect in a divorce.

You can find links to learn more about important topics like child custody, family law in all 50 states, and divorce.

Visit: guides.loc.gov/family-law/child-support-custody/online-resources

About the Author

Scott Levin is a family law attorney mediator in San Diego California known as the Chief PeaceKeeper™. As the leading divorce mediation lawyer in California, Scott leverages an eclectic background in law, business and finance to aid families through his expertise in family and divorce mediation. Passionate and dedicated to aiding clients resolve conflict outside of court, Scott Levin helps clients amicably divorce in California by working to bring about settlement terms, drafting the marital settlement agreements and filing the court forms. Scott also helps with post-judgment modifications as well as prenuptial and postnuptial marital agreements.