A popular alternative to traditional divorce is mediation. However, it is important to recognize that divorce mediation does not work for all divorcing couples. Listed below is an inside look into how the divorce mediation process works, so you can decide if it is a good fit for your specific situation.
Stage 1: Introducing the Divorce Mediation Process
Before the first mediation session gets underway, 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, you might have just met your mediator, so these administrative details will need to be addressed 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
In order 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. Most divorcing spouses will need to address the following in mediation:
- division of marital property, including assets and debts
- spousal support (alimony)
- child support (if applicable), and
- child custody and visitation.
Your mediator might have requested that you gather information relating to these topics—such as bank statements, paystubs, and your children’s school schedules—before mediation. If not, your mediator will help you determine 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 additional research is needed or a neutral expert is to be consulted, 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.
If you feel that you already know enough about your situation and have some settlement proposals in mind, fight the urge to tune out at this stage. Even though you might want to rush straight into negotiations, the mediator’s job is to make sure that 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 can span 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 in order to divide real property—the mediator might put off that discussion for a later session.
Stage 3: Framing the Issues in Your Divorce
In the framing stage, the mediator helps each spouse outline their “needs and interests.” This includes discussing each person’s desired outcomes, their reasons for wanting these outcomes, and their individual concerns, priorities, goals, and values. Identifying needs and interests helps to 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 satisfies fully all of the interests of the disputing parties. In divorce—where limited resources must be divided between two households—parties 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 spouses can live with.
Some mediators prefer to conduct the framing stage with each spouse separately, as they believe it better prepares each of you 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 the negotiation stage. Either method can work, although 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 Your Divorce
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 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 marital settlement agreement. Both spouses (and their attorneys, if they have any) have the chance to thoroughly review the agreement before signing.
The signing of a marital settlement agreement doesn’t finalize the divorce, though. The parties still need to file the settlement agreement with the court and ask that the judge incorporate it into the final divorce decree. Some mediators will file the settlement agreement and any other required divorce paperwork with the court—be sure to ask your mediator whether this is a service provided as part of the mediation.
One of the major benefits of a successful mediation is that it allows the spouses to pursue an uncontested divorce. An uncontested divorce is one where there are no issues (such as property division and child custody) for the judge to decide—all that remains is for the court to review the settlement to ensure that it is fair and legal, and enter a final divorce decree. Because there are no issues to resolve, uncontested divorces are usually far less expensive than litigated divorces. Also, because uncontested divorces are simpler, many people choose to DIY their paperwork, and courts can finalize these divorces sooner than contested divorces.
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