The Stages of Divorce Mediation

You might be considering mediation if you and your spouse are looking for a way to take advantage of the time- and cost-saving benefits of uncontested divorce—or at least to settle your divorce out of court. Once you've done your homework and found a good mediator to work with, you might be wondering what happens next. All mediators have their own methods and procedures, but most mediation proceeds in the stages described below.

Stage 1: Introducing the Mediation Process

Before the first mediation session starts, the mediator will need to perform an intake of the participants and explain what they should expect from the mediation process. You'll also need to discuss the terms of payment for the mediation if you haven't already.

Every mediator handles this stage differently—if you're participating in a private mediation, you might have already provided the mediator with background information such as your contact information, length of marriage, and whether you have children. However, if you're attending court-ordered mediation (more on that below), you might have just met your mediator. In that situation, you'll need to deal with these administrative details before the mediation proceeds.

The mediator will also explain the procedures for the day, present an agenda, and address any questions you and your spouse might have.

Stage 2: Gathering Information and Identifying Issues for Mediation

For the mediation to be successful, you, your spouse, and the mediator all need to have a clear picture of all the facts that will help you negotiate the issues in your divorce. At the beginning of this stage (or perhaps during Stage 1), the mediator will inquire about what you and your spouse agree on, and what you still need to work out.

Depending on whether you've already agreed about any issues in your divorce, you'll need to address some or all of the following during mediation:

• division of marital property, including assets and debts
• spousal support (alimony), and
• if you have minor children, child support, custody, and visitation.

Your mediator might have already asked you to gather information, such as pay stubs, bank statements, a list of your assets and debts, and your children's school schedules. If not, the mediator will help you figure out what information you need to bring in. If you can't locate an important document or don't know something crucial to the discussions, the mediator might suggest ways to get this information.

As you progress, the mediator will summarize the information being assembled. If you agree that you'll need to do additional research or consult an outside expert, that will go on a "to-do" list.

During this stage, the mediator might also begin to discuss the general legal rules that apply to the issues in your divorce. For example, the mediator might explain your state's property division laws, introduce you to the state's child support guidelines, or give you examples of how judges decide alimony. Your mediator is sharing this information to help you understand what might happen if you were to ask a court to decide these issues, so you can make informed decisions during settlement negotiations.

Fight the urge to tune out at this stage if you think you already know enough about your situation and have some settlement proposals in mind. Even though you might want to rush straight into negotiations, the mediator's job is to make sure both you and your spouse have all the facts and information you need to reach a settlement that is legally binding and that you won't regret having signed.

Depending on how much preparation you've done and how much information you gathered, this second stage could take two or more sessions. If you're waiting on additional information needed to tackle one of the issues—for example, if you need to get an appraisal on your home—the mediator might put off that discussion for a later session.

Stage 3: Framing Needs and Interests

In the framing stage, the mediator helps each spouse outline their "needs and interests." This includes discussing each person's desired outcomes and reasons for wanting these outcomes, as well as their concerns, priorities, goals, and values. Identifying needs and interests helps frame the core goal of the mediation: a settlement that successfully addresses each spouse's most important interests.

Often, spouses' needs and interests overlap. This is especially likely if the spouses identify a concern for other people, such as children. When an overlap like this occurs, it increases the likelihood of settlement.

Of course, it's not always possible to negotiate an agreement that fully satisfies all of each spouse's interests. In divorce—where limited resources must be divided between two households—spouses frequently must compromise. But when a mediator can fully identify and work through each spouse's most important needs and interests, the chances are good that the resulting compromises will be ones that both of them can live with.

Some mediators prefer to conduct the framing stage with each spouse separately, because they believe it better prepares them for the next stage: negotiating. Other mediators favor joint sessions because they believe that when spouses hear each other work with the mediator, it lays a better foundation for the give-and-take of negotiating. Either method can work. But separate sessions make the mediation longer (and more expensive), because anything important that is said in the separate session will have to be repeated to the other spouse.

Stage 4: Negotiating

Once the mediator has helped the spouses frame the issues and interests clearly, it's time to negotiate. Negotiations usually begin with an exploration of possible ways to settle each issue in the divorce. With the mediator's help, the spouses brainstorm and evaluate their options, until they eventually have a list of solutions that might work for both. Arriving at a "short list" of options almost always involves compromises and concessions on both sides.

Most mediators will emphasize the problem-solving aspect of negotiation at this stage. The problem to be solved is finding settlement options that address each spouse's most important interests as fully as possible. With this focus, you'll be able to negotiate by trading off acceptable options instead of getting locked into zero-sum bargaining, where one spouse's gain is the other spouse's loss.

Stage 5: Drafting a Settlement and Concluding the Mediation

When the spouses have reached an agreement about one or more of the issues in their divorce, many mediators—especially those who are also attorneys—will work with the spouses to draft a divorce settlement agreement. Both spouses (and their attorneys, if they have any) have the chance to thoroughly review the agreement before signing.

Next Steps and Resources

Once you've reached a divorce settlement agreement in mediation, you'll need to file the signed agreement with the court and ask that the judge incorporate it into the final divorce decree. (If you've gone through mediation before starting the divorce process, you'll include the settlement along with the divorce petition and other initial paperwork.)

Some mediators will file the settlement agreement and any other required divorce paperwork with the court. Be sure to ask whether this is a service provided as part of the mediation.

Help With Mediation Costs

If you're concerned about the cost of mediation, it may help to know that:

• you and your spouse will split the mediator's bill
• mediation will dramatically lower the overall cost of divorce if it leads to a settlement, and
• many courts offer free or low-cost mediation of child custody if you haven't agreed on custody and visitation by the time you file for divorce.

Do You Need a Lawyer for Mediation?

You don't need an attorney for divorce mediation—and many mediators don't allow attorneys to attend the mediation sessions. However, you may choose to hire a lawyer to help you prepare for the mediation and coach you through the negotiations (outside of the sessions). At the least, it's always a good idea to have an attorney review any settlement agreement you've reached, to make sure you haven't missed anything important or given up your rights.

If you don't already have a lawyer representing you in your divorce, you might consider hiring one on a consulting basis, just to handle some or all of these specific tasks. (You can ask whether this is a possibility when you meet with potential attorneys.)