Amicable Divorce Mediation FAQs
Here are the questions we most often get asked by people interested in amicable divorce mediation services:
Ideally, there should only be winners from mediation, because the process is designed to deliver a divorce settlement that both parties are prepared to sign up to. However, this is not to say that both parties will emerge from mediation delighted with the result, as it’s likely both sides will have to show a degree of compromise in order for an agreement to be reached. But mediation gives both spouses the opportunity to get their voices heard and to raise issues they want tackled. It’s the mediator’s responsibility to ensure both sides get a fair hearing in a mediation session. There are no time constraints on mediation, and discussions can be held over a series of days or weeks, until both parties can agree on a settlement.
At no stage will either side be expected to agree to something they feel isn’t right for them. But all parties should be prepared to enter into mediation with a spirit of compromise dominating everything they do and say. And once an agreement has been jointly signed, it is legally binding and enforceable, just like any other divorce judgment.
Lawyers are likely to charge a retainer of up to $5000, and will bill you for services carried out on top of those covered by the retainer. This retainer will be higher the more complex the case. And remember, as a couple you will be hiring your own lawyers, so incurring two lots of fees and retainers, whereas in mediation there is only one mediator to hire. It’s why in a typical divorce case, costs can be up to ten times higher than with mediation. And that’s not even taking into account the emotional price you and your children might have to pay if you divorce is handled the adversarial way through the courts.
To risk stating the obvious, court-ordered mediation has been ordered by the courts to help solve a divorce proceeding, particularly ones where a child custody case or parenting dispute needs to be resolved. A date will be decided for you to attend court-ordered mediation, so you are not in control of the process, the courts are. You are compelled to attend if a judge orders you to, if you don’t you face being charged with contempt of court. Once court mediation has finished, a mediator selected by the court will produce a written report explaining the case which will be handed to the judge who will then give a ruling.
In private mediation, both spouses must agree to participate and agree to use the same mediator. Cost-wise, some mediators will ask for an hourly fee, others will charge for a session at a time. Private mediation will allow couples to discuss:
- Child custody
- Visitation rights
- Support issues
- Property division
All issues dealt with during mediation must remain confidential, and must not be used in a court, should the divorce have to be settled there.
Legal litigation is way more confrontational, as lawyers are hired by both sides to present a case that’s designed to get a judge to give their client the most favourable decision. This usually means an adversarial approach is employed by lawyers who try to demean the other partner in the case. And neither partner will know the result until the presiding judge rules on the case. Even when the result is delivered, there’s no telling who, if any partner, will emerge victorious.
In contrast, mediation works on the principle that those involved in a divorce are best placed to come to an agreement about the way forward, with a little help from professionals who can point them in the right direction. By and large, the process is non-adversarial and requires all parties to agree to voluntarily share information in an non-aggressive, confidential manner.
At no stage during mediation will the mediator take sides or pass judgement in terms of who is right or wrong. Instead, their role is to work with both sides to guide them towards an agreement that’s mutually beneficial. Either spouse can withdraw from the mediation process at any time.
To ensure the confidentiality of all mediation sessions, no conversation is recorded and no court reporter is present. What’s more, the mediator is honor- bound not to disclose anything that’s discussed during a mediation session to anyone other than those participating in it. In some cases, lawyers can be present during mediation sessions.
It is worth noting here that mediation is not a substitute for securing the services of a qualified lawyer. You will need to seek qualified, independent legal advice during your mediation, and will need a lawyer to review your agreement before you sign it.
This is down to the mediator, so you should ask them how they prefer to conduct their mediation sessions, before deciding whether or not to hire them. Some will prefer the session to take place with both spouses in the same room and with lawyers present, as this helps eliminate any misunderstandings. Other mediators like to keep the sides separate, especially if one or both of them have a history of substance misuse or domestic violence. Some mediators conduct online sessions too.
You can start by asking friends or family if they know a good divorce mediator they’ve used before. If you can’t get a personal referral, your local community mediation agency, court or bar association should be who you turn to next for a recommendation. When you do receive a referral, it’s vital to discuss their experience, certification and costs before deciding whether to proceed.
The short answer is yes, in most divorce mediations, you pay for a session at a time. But there will be additional charges for preparing court papers which will be levied before each document is dealt with. You may also have to pay your mediator a small retainer fee when you hire them to cover costs which they may incur between mediation sessions. This pay as you go approach means you can proceed with your divorce as and when finances allow. So after agreeing the way forward via your mediation sessions, you can hit the pause button on proceedings before paying the fee charged for having your settlement agreement prepared.
There’s no such thing as a case that’s too complicated to be resolved by mediation. You may need to consult with other experts during the mediation process – financial planners, accountants, family lawyers, but you will still be able to reach an amicable divorce settlement.
You might not think you can possibly enter into negotiations with your partner if your separation has been particularly acrimonious. But mediators are trained to help you both work things out in a respectful, non-confrontational manner. And some mediators even offer online services, where mediation sessions can take place virtually, from anywhere in the world, so you don’t have to be in the same room, city or country as each other while you try to reach an amicable divorce settlement.
There are bound to be certain issues that mediation is unable to resolve, but this won’t stop mediation being effective, as you can prepare an agreement that focuses on the issues you have resolved, and treat the sticking points separately, either taking more time in mediation to solve them, or entering into litigation
It’s the mediator’s job to ensure both parties get an equal chance to state their case during mediation sessions, so no one side of the story will be dominant. If it turns out that one side is overpowering the other, the mediation session will be halted. However, it is often the case that spouses who deem themselves the ‘weaker’ of the partners, prove to be able to successfully state their case and get the result they want from mediation.
The mediation process is far less time-consuming than getting a divorce through the courts. Indeed, in some mediation cases, couples find they can work through their issues in a single session. Others with more complex situations may require multiple mediation sessions to reach an amicable divorce settlement. The more effectively you and your partner can communicate and the fewer issues you need to resolve will result in less time needing to be spent in mediation.
Of course, every case is different, but on average you should expect to need three or four mediation sessions across a month or two. If your circumstances are more complicated, your case could take up to six months to resolve.
While arbitration is similar to mediation in that it’s a cost-effective, time-saving way to get a divorce, it doesn’t permit couples to come to an agreement on their own. Instead, couples present both evidence and testimonies to an arbitrator who, rather like a judge in court, will decide on the best course of action, without the input of the couple.
One of the big advantages of mediation is that no court appearances are required by either party.
The primary purpose of mediation is to focus on the interests of each of the parties. The mediation process can be used to:
- Clearly define the nature of complaints, disputes and issues
- Uncover suitable options and ways forward
- Manage the process, so the conclusion is a win-win
- Help deliver divorce settlements that are mutually agreeable
- Ensure all agreements reached are recorded in writing
The mediator has to be a neutral party in the negotiations, using their training and experience to resolve issues relating to the divorce. Specifically, the mediator should:
- Facilitate discussions between the couple, ensuring both get the same chance to speak during mediation
- Provide information about relevant aspects of the legal system
- Suggest different ways in which issues can be solved
- Get each party to clarify their views so they can be understood
- Tell each party how their issues may be viewed from a legal standpoint
- Recommend other experts the couple can consult
Divorce mediation is often the best path forward in a dispute if:
- Both parties are committed to resolving their disagreement
- The nature of their separation is likely to evoke strong emotions
- Both parties want some kind of relationship to remain, usually for the sake of their children
- One partner isn’t comfortable confronting the other
- The discussions between the parties have hit a brick wall
- One or both spouses want to avoid costly litigation
All mediation involves a neutral third party facilitating productive and respectful discussions between two opposing parties. In the case of divorces, the parties involved are spouses who wish to end their marriage and separate. Divorce mediation will seek to do this in the most amicable way possible, guiding both parties towards finding a resolution themselves regarding issues such as:
- Division of property and other assets
- Child custody and visitation rights
- Financial support
Mediation is voluntary and requires all participants to keep whatever is said during the session confidential. Mediators are there to help the couple get the most out of their discussions by directing the conversation in certain directions and raising issues that are most likely to help them come to an agreement. In the end, it’s the couple who decide the content of their divorce order. The Mediator can draft the final agreement but has no say over its contents.
After starting with a lawyer, many of our clients find us. It is never too late to mediate.
If you have a question or two after reviewing our website, we recommend that you schedule a complimentary 15-minute call. We will address your questions and determine your next steps. You can do so by CLICKING HERE.
Most often it is not as much ‘not wanting’ to reach agreement but ‘knowing how’ to decide. A mediator can convey a fresh perspective. The mediator’s own experiences and knowledge can support the parties to explore alternatives that may not have previously considered.
Lawyers and Family Court can always come later if no progress is made in mediation. With Divorce mediation you pay-as-you-go, there is limited financial jeopardy in trying to use mediation even if you are skeptical. You could devote a few hundred dollars to find out a settlement is not in reach and end up in Family Court anyway. However, there is a greater likelihood that you will settle in mediation if you start. In that event, you may have saved yourself tens of thousands of dollars
I offer virtual divorce mediation services which can be conducted online so you don’t have to share the same space with your spouse.
After a comprehensive divorce mediation a separation agreement will be prepared. You will need a legal professional to review the separation agreement and confirm your understanding of the agreement by providing you with a Certificate of Independent Legal Advice. I will share with you a list of lawyers who will charge competitive fees to provide a Certificate of Independent Legal Advice without requiring a retainer
That’s not a problem as we provide online mediation services that couples use, even if they are within easy reach of our offices.
We can mediate across a whole range of divorce issues, but as we are financial experts, that’s the area in which we can add the most value.
No, my job as Divorce Mediator is to get you talking with your spouse so you can sort things out between you, not to offer my opinions. If you hire me as a Certified Divorce Financial Advisor instead of a Mediator, I will be able to recommend the best division of assets as well as the best childcare and spousal support solutions. If you hire me in this role, I will not work as your Mediator.
Start by gathering all your financial information. I can give you a list of things I’ll need if you email email@example.com Also, take time to think about what’s the most important result for you to get from your divorce settlement and what your partner might want. Draw up a list of areas you want to discuss during mediation, and be sure to enter into sessions with a determination to compromise over those things that don’t really matter that much. If your mediation is charged on an hourly basis, you don’t want to be wasting time arguing over trivialities. You may want to checkout my ebook How to Prepare for Separation and Divorce HERE
Usually, each party pays one-half of the cost of the mediation. However, there are also many cases in which one party agrees to pay all the cost or a higher percentage than the other. In some cases, one party pays for the mediation as cost occur, then gets reimbursed for one-half in the final property division.
We offer mediation with a flat-fees for document preparation and an affordable per hour rate for mediation. A comprehensive settlement will cost between $2000 and $7000 depending on the complexity of your case.