Frequently asked questions about divorce mediation
Is divorce mediation right for me?
Yes - if you are seeking to avoid a contentious, protracted and expensive divorce and you are willing to come to mediation to attempt in good faith to resolve your differences with your spouse. By agreeing to mediate, you do not relinquish any of your legal rights and the mediation can be discontinued at any point if you, your spouse or the mediator feel that the process is unproductive.
What are the advantages of "direct" negotiations?
Direct negotiation expedites the resolution of issues and often results in better long term communication between the parties. Many couples with children report that participation in mediation has improved their ability to resolve ongoing issues concerning their children after the divorce. Additionally, children of parents who mediate adjust better to their parent's divorce.
If we can't get along, how can we mediate?
Marital difficulties are often accompanied by anger, distrust and a breakdown in communication between spouses. A skilled mediator can defuse these negative feelings and help each party present their needs in a way that the other can hear and understand. This enables the parties to fashion an agreement that each party finds acceptable.
Is mediation a substitute for having my own attorney?
Divorce is a major legal event in your life. It would be foolish to make important decisions about your future and that of your children without first being sure that you understand your legal rights and the legal ramifications of any agreements you make. Mediation does not eliminate the need for lawyers. Mediation simply changes the role of lawyers from adversarial negotiators to legal consultants. Throughout the mediation, parties are encouraged to consult with their own attorney if they have any questions regarding their legal rights. Parties who have not consulted with a lawyer during the process should have the final agreement reviewed by their counsel before signing it. Mediation substantially reduces legal fees by limiting the lawyer’s function to reviewing the final agreement and serving as a legal consultant during the process.
I heard that in mediation I would have to pay a large sum of money up front just to get started?
I do not require any up front fees or retainers to begin mediation. Fees are paid by the hour at the end of each mediation session. In this way you know exactly how much time is being spent and for what you are being charged. You can choose to increase or decrease the time spent depending on your goals and budget.
I am afraid that I will have to compromise too much and will not get everything I want?
Mediators are trained to focus on the same issues that would be examined by the court: spousal support, asset distribution, child custody, property settlement, and parenting plans. With the help of the mediator, the couple decides what is fair. The mediator serves to assure that there will be an equitable balance in all agreements.
Since children get hurt by divorce no matter what, it doesn't matter whether I decide to mediate or litigate my divorce?
This is incorrect. By its very nature, litigation is an adversarial process. Thus it promotes a climate of tension and acrimony. Mediation, on the other hand, promotes a climate of co-operation. The mediator is continuously keeping in mind the emotional, psychological, and financial interests of the children. Since parents will remain parents after the divorce, it is in the best interest of the children for them to learn how to negotiate for the future.
Wouldn't it take just as long to get divorced using a mediator as it would if I hired and attorney?
On the contrary, by using a mediator to handle your divorce, you save time. Since all the negotiations are spent with the couple being present, and conversations between spouses occur directly with one another, a considerable amount of time is saved. In a litigated divorce one party talks to his/her attorney who in turn talks to the other attorney, who then talks to his/her client, only to begin the cycle again. By having the parties talk directly to each other with a mediator, a great deal of time is saved.
I will suffer no matter what I do, so mediation cannot help?
Pain is a natural part of dissolution. However the mediation process mitigates the pain by empowering the parties to focus on the issues that need to be resolved. The process allows for each party to express his or her feelings while focusing on the decisions that need to be made. With the help of a trained mediator, both the emotional and psychological issues as well as the legal issues will be attended to. This process helps reduce or eliminate the additional pain that is part of an acrimonious litigated divorce.
I understand that I will have to give up my right to go to court if I choose mediation?
This is not true. You give up none of your rights when you decide to mediate. Should the mediation break down, you are always free to exercise your right in court.
My spouse is an emotional bully. I will not be protected unless I have a lawyer to defend me?
An experienced mediator is usually able to diffuse most emotionally charged situations. Mediators focus on empowering the weaker party so that equitable decisions can be made. In addition, mediators often recommend that the couples seek outside consultants (e.g., accountants, attorneys, appraisers, etc.) in order to be more informed. By the time mediation is concluded a balance of power is usually achieved with the rights of both parties being addressed.
I am sure I want a divorce. I thought you only go to a mediator if you want to reconcile your marriage?
Mediation is not marriage counseling. People come to mediators for the purpose of obtaining a divorce with less pain than occurs in litigation. Divorce mediation hopes to effect a balanced settlement of the issues facing couples where both parties can participate in deciding their own future. In a litigated divorce the judge decides what is fair: in a mediated divorce the couple decides.
How long does it take?
About six to twelve hours, depending on the complexity of your estate and your dynamics. If you do more work outside the session, collecting the data, sharing it and discussing it, you will spend less time in the session. If you fight a great deal about the past, the entire mediation process could take longer. It's up to you. We move at whatever pace you set, always contingent, of course, on doing a thorough and careful job.
How much does it cost?
My fee is $185 an hour and I expect you to share in that fee in a ratio that is appropriate.
Can we use one attorney or do we each have to have an attorney?
I recommend you each have your own attorney. That gives a second opinion on the agreement, which, after all, covers you for the rest of your lives. But you don't have to make this decision until the end of the process.
What information do I need to bring into sessions?
We will need a budget from each of you on what it will cost you to live apart. We will need a net worth statement from each of you showing everything you own and everything you owe. Also, we will need the last three years tax returns. Of course, when we look at the net worth statement we will also need documentation of all of your assets and liabilities. I will give you forms you need to complete before we get started.
I'm afraid to have an open and honest discussion with my spouse. I'm afraid that if I say the wrong thing (or share information I don't want him/her to know), this will cost me in the final divorce?
Mediation is confidential and courts in Maryland do not normally admit into evidence any offers made in a settlement conference. That is, when offers are exchanged in negotiations prior to the trial they are done so without prejudice. There is nothing to be afraid of. You will have to share all of the information with each other during the mediation in order to make intelligent decisions. If you don't share all of the information in mediation, then you will share it when subpoenaed by the other's attorney, and if you don't share the information with the attorney, the judge will you to share the information with him. So, the question is not whether you share the information, but when you share it. You will have to provide the information - either here voluntarily, at the attorney's in an adversarial arena, or in court under orders of the judge.
Aren’t mediation and therapy almost the same thing?
The goal of therapy, including divorce counseling, is to help the individuals resolve emotional problems so as to become more comfortable and functional in their lives. The goal of mediation is to help the divorcing couple make decisions about the business aspects of their marriage and to develop a workable plan for the future.
The difference between the therapy process and the mediation process is just as striking as the difference between their goals. Therapy focuses on feelings, searches them out, explores them, and even provokes them. Conflict and anger are not avoided or diffused and, in fact, are made central. Looking for nice, neat answers is discouraged. Mediation is almost the opposite. The focus is on gathering information, much of which is quantifiable, and making decisions about the business aspects of their marriage. In short, the major focus of therapy is on the process, while that of mediation is on achieving a specific goal.
Mediation only works if the couples already agree on divorce issues. Wrong, Wrong, Wrong! In fact it is the exact opposite! Mediation works best when there is more conflict (assuming there is not any physical abuse). When a couple is at opposite ends on every issue, going to court will usually only make matters worse. Only when a couple is empowered to reach agreements on their own with the help of a high conflict trained mediator can the agreement feel fair and the healing can begin.
All mediators are pretty much the same. This is not true. Because mediation has become more popular, more mediators are beginning to practice. Many attorneys dabble in mediation however there are very few that mediate full time. It is arguable as to whether there is any advantage to being an attorney. Both the attorney mediator and the non-attorney mediator must have a working knowledge of the different divorce statutes. What they do with this knowledge is very different than what an advocate attorney would do. The mediator would educate both husband and wife of the different statutes but would not advise or represent either of them. For this reason an attorney mediator would seem to have no apparent advantage. Most attorney mediators started out as litigating attorneys and try to change hats to a mediator. The profession of adversarial advocate and mediator is exactly opposite. One promotes a win-lose outcome and the other promotes a win-win outcome. For this reason many attorneys’ find mediation to be very difficult as it is contrary to their natural tendencies to be adversarial. It should be noted that many attorney mediators have been able to make the transition.
I will not have my rights represented if I mediate.
This is a scare tactic that attorneys sometimes use to dissuade a client from mediating. This is simply not the case. The mediators will spend considerable time educating the couple about the guidelines and statutes the courts use when making a ruling. The mediators will not be advising the couple or the individual regarding legal matters. This would comprise the impartiality which is paramount in the mediation. The mediators will not discourage the couple from reviewing the agreement with their attorney should they choose to have legal counsel. An attorney who is pro mediation can be a great resource. It should be noted that most of the couples do not get an attorney because they feel that it isn’t necessary and is a waste of money. The mediators will not put an agreement together that is not compliant with the state laws or is grossly one sided.
Mediation is mainly for low income couples trying to save money.
The true value of mediation is not in the amount of money that the couple saves but in the quality of the agreement. Owings Mills Mediation has handled several high profile divorce cases (i.e. celebrities and other well known and recognizable people) because it is a confidential process that the public is not entitled to. Mediation is less expensive and takes less time but it should not be looked at as a “cheaper” route. If cost is the most important issue to a couple they will definitely get more “bang for their buck” by using mediation.
What if I want to mediate but my spouse does not want to?
This happens quite often. Mediation is a voluntary process. Both parties much show at least a modicum of willingness for mediation to have a chance. If your spouse does not want to mediate it is usually because he or she does not understand what it is. You will not be as good at explaining how mediation works as a mediator will be. If your communication is strained with your spouse and you try to explain to them what mediation is, and try to persuade them to mediate it is very likely that they will question your motive. If you feel that your spouse is not going to be amenable to mediation then you might suggest to them that both of you set up a consultation with a mediator of your choice and then decide if 1. Mediation is right for you both and 2. Which mediator you both are most comfortable with. It should also be noted that the courts frown on people who refuse to mediate. A judge will likely mandate that the party mediate before trying a case.
What if our situation is too difficult for mediation?
This would not likely be the case. In fact it is the opposite. The more conflict in the situation the better mediation works! Statistically only 3% of the cases that I start ever end up needing to involve the courts. This is because most experienced mediators spend time with the couple focusing their anger and frustration and helping them realize that the more control they have in the agreement reaching process the better the agreement will be for both of them. When you to let a judge and attorneys make the decisions for you then there is a greater chance that the outcome will create even more conflict. This would explain why over 35% of all litigated divorce cases end up back in court.
What if mediation does not work?
It is rare that mediation will not result in an agreement that both parties feel comfortable. When this does happen it is usually because of unwillingness from one or both people and that is usually a result of false expectations that may have been generated from a friend or family member or maybe even an attorney. If a couple is not able to find common ground in mediation then there are still alternatives to going to court that can usually bring agreement. One of these alternatives is to use an "advisory panel" made up of 3 retired judges or seasoned attorneys that the mediators choose. They read a summary of what the impasse is about and what each person wants. Each panel member acts independently of each other and they do not know who else is on the panel. This is a sort of "mock trial" that gives the couple a sense of how a court would rule on a particular issue. This process works very well but should only be used as a last alternative. If there is continued impasse the couple can always go to court and let a judge make a decision.
Are Mediated Agreements Legally Binding?
At the end of the mediation the mediators will prepare a document called a "memorandum of understanding" or "mediation agreement". This document will include all the agreements the couple made throughout the mediation. This document will be signed and notarized as a legally binding document. It is a contract between the couple. In order for the courts to recognize it as a divorce it must be converted into a "divorce decree". This is the accepted format by the courts. It usually means that the "mediation agreement" is used as an overlay or template to create the decree. Everything that is in the mediation agreement will be in the decree and vice versa. Often times the "mediation agreement" is even filed with the decree as an attachment. To prevent any perception of bias the decree document preparation is done by either the parties or an attorney or paralegal.
Why is Mediation less expensive than using attorneys?
When a couple decides to use attorneys and the courts to handle their divorce, they are paying them to do all of the work. In mediation the couple will be expected to do a lot of the work. This means the process will take much less time. If a couple wants to keep some control of the process and outcome and are willing to commit to spending some time in mediation trying to find common ground and reach fair agreements will find mediation will cost significantly less than litigation.
Why do some firms claim to be able to do divorces for $100.00-$200.00?
First of all there are no mediation firms preparing complete divorce documents for this price. There are several "document preparation" services that can be found on the internet, are done by paralegals and even some attorneys that will prepare the basic minimum required documents by the courts. There is no mediation. There is not any opportunity to discuss options or alternatives. Most of the time couples choose this service with the sole intent of trying to save money. But the sad reality is that most of these boiler plate Agreements simply don’t work and are not accepted by the courts for numerous reasons. Almost all of these types of divorces have major problems in the future and often end up back in court. If this happens, the modifications can be very costly in both time and money.
What do Attorneys think of Mediation?
Most attorneys understand that the courts are ill suited to handle family divorce issues and encourage divorcing couples to at least try mediation. Many attorneys have given up their legal practices to pursue careers in mediation for this purpose. Judges are also big proponents of mediation because of the success rate of mediated divorce agreements. Only 3% of mediated divorces end up back in court as opposed to 35% of litigated divorces.
How long will it take and how much does Divorce Mediation cost?
This is the number one asked me by divorcing couples. Quite frankly this is amazing! This should be the last question asked. If you needed and emergency heart transplant would you shop around until you found the cheapest surgeon? Would you go to the Dominican Republic if you found out you could get it there for half the cost? If you have been married for any reasonable amount of time and especially if you have kids then you should know that the decision to get divorced and how that divorce will be done is every bit as big of a decision as having a heart transplant!
Cost and duration obviously depends on the level of conflict and the level of complexity.
Is it cheaper than going through the legal process using adversarial attorneys? Absolutely! But if you’re hoping mediation will only cost $100 to $300, then don't waste any more time considering at it as a possibility.