In mediation, you and your spouse work with a mediator to negotiate a legally binding divorce agreement. If the mediation is successful, the agreement will be one that you and your spouse will abide by after it’s been signed.
The Mediator’s Job
The mediator’s job is to structure the mediation in a way that optimizes the chance of successfully negotiating a divorce agreement. A key difference between mediation and one-on-one negotiations is the organization, or structure, provided by the mediator. For this reason, mediation is often referred to as a structured negotiation.
Structure of a Typical Mediation
Mediation usually consists of five stages. These stages usually occur in sequence, one after another, although sometimes you will cycle back through earlier stages before reaching a complete agreement on all issues. And some mediations have a life of their own, where it’s hard to discern any stages at all. Still, you should find it helpful to look at what happens in each stage of a typical mediation, given that every mediation will have the essential features of each stage, even if not in the typical order. In mediations with fewer issues, all five stages might occur in just one or two sessions. Most divorce mediations take more sessions to complete all five stages, however, because of the many different issues—property division, debt allocation, alimony, child custody and support—that need to be addressed and the amount of information that must be gathered.
The five stages of a typical mediation are:
- information gathering
- negotiating, and
Using the Law in Mediation
You may wonder where the law fits in, given that divorce is, after all, a legal event. What about your legal rights to property? What about the laws governing child support, custody, and other legal issues? Aren’t these important? Yes and no.
One of the great features of mediation is that you and your spouse get to decide what’s best for you, even if it’s different from what the laws provide. There are a few things you cannot legally agree to—such as giving up the right to receive child support—but these are rare. Other than the few exceptions, you are free to make whatever agreement is best for you. Being free to decide the terms of your settlement doesn’t mean that the legal rules aren’t significant. If you want your agreement to withstand the test of time, you should know how it compares to what the law would dictate. What are your legal rights? Which ones are you compromising? Do you have a good reason for compromising them? How does your overall agreement compare to the likely result if you went to court? Asking—and getting answers to—these questions will guide you in negotiating the right settlement.
How to learn about the particular laws that apply to your case, and how to include consideration of the legal issues in your negotiations, depends on how your mediation is structured. Mediators vary in their approach to this question, so it is something for you to raise in the first session.
Finding and Using a Consulting Lawyer
You may find it very helpful to consult with a lawyer from time to time during the mediation. A good consulting lawyer can help you understand your legal alternatives early on so that there are no surprises during the mediation. Your lawyer can coach you through the negotiation stage and help you evaluate your options as the mediation progresses. And your lawyer can review the divorce agreement when you finally reach a settlement.
You may be concerned that consulting a lawyer will be unnecessarily expensive and adversarial. That is a risk if you don’t lay the proper groundwork for the consultation or if you aren’t careful in selecting a consulting lawyer. You can eliminate the risk, however, by following some simple guidelines:
- Select a consulting lawyer who understands and supports mediation.
- Schedule an initial consultation with a consulting lawyer as early as possible.
- Consult with your lawyer as needed as the mediation progresses.
- Make sure the lawyer charges you an hourly fee for meeting with you that is comparable to the hourly fees charged by similarly experienced lawyers in your community. Do not pay a large up-front retainer.
Always remember that your lawyer works for you, and has the job of giving you advice and feedback on the agreement you are negotiating for yourself; the decisions are up to you.
Mediation: An Insider’s View
If you’re interested in eavesdropping on some real mediations, take a look at A Guide to Divorce Mediation, by Gary J. Friedman (Workman Publishing Company). This book includes detailed accounts of six different mediations drawn from the author’s extensive mediation experience. Each account is presented as an edited transcript, giving you a realistic picture of how things can go in mediation.