As an attorney who has been a career divorce mediator for many years, I am constantly asked the following questions:
- How does divorce mediation work?
- Do I need to hire a lawyer for divorce mediation?
- How does divorce mediation integrate with the court-contested divorce process and can each process actually support and complement the other?
When to Use a Divorce Mediator in a Court-Contested Divorce
There are many misconceptions surrounding these questions so the following is designed to provide some more clarity around them so that divorcing couples can be more fully informed of how these two options co-exist and how they can function together in a divorce matter:
What is Divorce Mediation?
Divorce mediation is a process where spouses agree to come together privately to retain control over all the decisions to be made for their divorce settlement, rather than each spouse retaining their own attorney and submitting to a more costly, lengthy, painful and less predictable process of a court-contested divorce.
In so doing, spouses can take the decision-making away from judges, attorneys and an often overworked court system and instead come to a fair and reasonable compromise on their own in which they have carefully considered their family’s best interests and have provided for everyone’s needs.
Spouses work with a third party divorce mediator (often an attorney, but not always) who assists them in achieving a fair and workable settlement that they can each live with. The divorce mediator is a neutral partner in the process who guides, educates and navigates spouses through the divorce process so that they can make sensible and more informed decisions that will impact their settlement. The divorce mediator does not take sides, or advocate for any particular spouse, but instead focuses on ensuring a fair and reasonable outcome that is satisfactory to both spouses and that protects the sanctity of their family.
Ideally, spouses need to be on an amicable level with one another without the intention of harming each another, both financially or emotionally, for divorce mediation to work most effectively. Divorce mediation is not about winning or losing, but it is about doing what is right and what is most fair, while protecting and providing for all those involved.
How Can Divorce Mediation Support the Court-Contested Divorce Process?
You might think that each of these processes are mutually exclusive of the another. This is not the case. In fact, divorce mediation can be an extremely useful and important resource for a court-contested divorce.
Our firm receives many calls from spouses who are ready to dissolve their marriage but have not decided in what manner to proceed. Upon our screening of these calls, we learn that some of these spouses will not be appropriate candidates for mediation, usually because of some type of previously existing circumstance in their marriage that they are unable to overcome which prevents them from being able to work together amicably.
When this happens, we refer these spouses to private divorce attorneys who are collaborative-minded in their approach. These attorneys will try to find a collaborative solution first that avoids the need for court, sparing spouses and their families much time, expense and heartache.
Once these spouses learn more about the option of mediation for divorce, they are often inspired by it, even if they cannot participate in it. They can then carry that inspiration into their divorce, and often times, if their spouse is reasonable enough, they can short-circuit a huge part of the court litigation process and come to a reasonable resolution much quicker.
Divorce mediation can also be a huge time and cost saver for those spouses who have already initiated a court-contested divorce. Our firm has worked with several clients who come to us while already in the middle of a court-contested divorce, sometimes for years.
Usually, these spouses come to us feeling tired, hopeless, financially and emotionally depleted and generally dissatisfied with how their matter is proceeding. Typically, their case will become gridlocked in court because they can’t agree on a particular issue(s), or one or both are unable to pay their legal bill. The battle just goes on and on indefinitely with no forward progress and no end in site. They each see no way out of what becomes a vicious cycle.
When these spouses open up to the idea of divorce mediation, many times out of necessity, all of a sudden amazing transformations can happen. They learn how to communicate and compromise on their own, free from the constraints of the court process. They feel energized, liberated and motivated to get to the finish line because they see the light at the end of the tunnel for the first time. They also begin to focus their thoughts and energies away from the winner-take-all mentality of litigation and towards what’s most important for their family’s future. These are the most gratifying cases that I work with.
In some Pennsylvania counties, like Montgomery county, mediation is mandatory as part of the court-contested divorce process and is managed through the county court. However, this process is confined to custody issues only and does not address the other aspects of a divorce case. In addition, this process only has limited results and is widely viewed as a formality before spouses get to the final stages before their divorce judge for a custody trial.
In addition, courts will sometimes order spouses to submit to private mediation, if their judge believes they are close to a settlement and could benefit from mediation to help them overcome those final few sticking points.
I was also recently presented with a situation of a couple who were contemplating divorce and had a pre-nuptial agreement with a provision for mandatory mediation in the event of divorce. I had never seen this before and was fascinated by it. I thought what a brilliant, out-of-the-box idea this couple had to use mediation as a means of avoiding a potential costly and tedious divorce in court!
At what point can a litigation attorney be used in the divorce mediation process?
Generally, you do not need to retain a lawyer to represent you in divorce mediation. In fact, you and your spouse agree not to retain lawyers and involve the court in this private process. Although the divorce mediator (as long as they are also an attorney) cannot provide legal advice per se, he/she will ensure that each spouse fully understands their legal rights and obligations in a divorce by providing a legal overview of the basic divorce law concepts. Once spouses understand where they each stand in relation to the law, they are better positioned to negotiate a fair settlement on their own without the need to have an attorney by their side during the negotiation process.
I always tell clients that by the time they are finished with our program, they will learn more about the divorce law than they probably ever wanted to. And not that they become experts in the law itself, but they become highly adept at understanding the basic legal concepts and how to apply them to their own particular needs and concerns.
However, once the attorney-mediator in our My Healthy Divorce program prepares the initial marital settlement agreement draft, each spouse has the absolute right to have an outside attorney review the draft before they sign it. This is an extra protective measure of the process that allows a spouse to “get a second opinion,” so to speak, before they sign, similar to getting a second opinion from a doctor on a medical condition, so that they can move forward with greater peace of mind.
Note that the private review attorney is not being “retained” by the spouse for any reason and is not being asked to reinvent the wheel on an agreement that both spouses have negotiated together, and that they both believe is fair. Rather, the attorney’s function is as an “adjunct” to the mediation process who performs a quick review to affirm that the agreement is fair overall, that the language is clear and that there are also no typographical or other errors that could make the agreement sound ambiguous.
When is a referral to a divorce lawyer necessary?
There are times when spouses can hit a major impasse on an issue that they just can’t overcome in mediation, even with the divorce mediator’s best efforts. What happens is that one or both spouses will become temporarily discouraged in mediation and will convince themselves that they will fare much better by seeking the protection of the court–a “testing of the waters,” so to speak. The reality, however, is that in the majority of mediated settlements, spouses will end up in either the same position, or better, in their divorce settlement than if they had retained attorneys and litigated in court.
When this happens, I am actually the one who will strongly recommend that my clients each consult with a divorce lawyer. When I make this recommendation, I do it with the utmost confidence and assurance that they will almost always return to mediation with the perspective they will each need in order to complete their settlement. To be sure, they are not abandoning the mediation process and retaining attorneys for litigation. They are simply satisfying their curiosity of how their case might end up if they were going to court.
In making this recommendation, I always make sure that I refer spouses to collaborative-minded attorneys who understand and support the mediation process. This ensures that the attorney will respect the agreement for what it is, with the goal of assisting and encouraging the client to find a compromise or solution that avoids having to involve the courts.
To be mediation-oriented is a state of mind and attitude that one brings to their divorce, no matter how they choose to obtain it. As such, whether spouses are litigating or mediating, this mental disposition will serve them well in either case. It should be comforting to know that if spouses have the need to litigate their divorce, they can still apply the principles and practices of mediation to complement the process so that they can have a more positive experience and outcome.