Although many divorces wind up in court, they don’t have to. Mediation offers spouses an out-of-court alternative that allows them to settle their divorce on their own terms. Divorce mediation offers a number of other benefits compared to traditional litigation. Cohen Family Law’s lead attorney, Mitchell E. Cohen, represents spouses during mediation by providing them with legal counsel to help them make the right decisions for themselves. If you believe mediation is a good fit for your Arizona divorce, let us help.
What is Divorce Mediation?
Mediation is a form of alternative dispute resolution, or ADR, in which spouses confidentially discuss, negotiate, and potentially settle the various issues tied to their divorce. A neutral third party, known as a mediator, oversees the process and works to facilitate productive negotiations between the parties.
The mediator is not a judge and has no personal or professional stake in the outcome of the mediation. In other words, the mediator does not make decisions for the spouses and does not represent either one. The mediator therefore cannot compel the spouses to settle or agree to anything and does not order either side to do or not do something. Rather, the mediator’s role is to guide open, honest discussions with the aim of helping the spouses decide (among other matters):
- The division of marital property and debts
- Spousal support (also called alimony)
- Child custody and parenting plans
- Child support
With respect to child custody and parenting time, the court may order the parties to conduct mediation through its Conciliation Services. But private mediation can also be used to resolve custody and the other above issues. Some spouses use private mediation more than once, and they can address all or just some matters arising out of the marriage. For instance, they may come to an agreement on property division but disagree on a parenting plan. In this case, the judge may ultimately need to decide this or any other unresolved issue.
What Are the Steps in Private Divorce Mediation?
The first step is for the spouses to agree on a qualified divorce mediator. Your attorney will guide you in this decision and work with the other spouse’s lawyer to settle on the right person.
The process begins in earnest when the two spouses, and their lawyers, meet together with the mediator. Private mediation happens in the more relaxed setting of a law office rather than a court. Usually, all parties will start out in the same room but may later go to separate rooms. This allows each spouse to confidentially discuss matters with their attorneys and to meet with the mediator individually.
After explaining how the process works and allowing the parties to go to their separate rooms, the mediator will spend time visiting between the spouses and gaining a better understanding of their positions in the case. Both the mediator and your attorney can explain how a judge may decide certain matters, which gives you an idea of whether to settle or take an issue to trial.
As the mediator goes back and forth between the spouses, settlement offers will start to develop. The mediator will convey these offers, and subsequent counteroffers, between the two sides.
The mediator might ask you questions during this process. The point is not to oppose you or take a side, but to challenge you to thoughtfully consider the benefits of settlement versus court. At any point in the process, you can inform your mediator that you wish to speak privately with your lawyer.
If the mediation is successful, the mediator will typically draft what’s known as a Memorandum of Understanding. This outlines the essential terms of an agreement between the spouses. Your lawyer will assist in drafting this document and will also draft the necessary legal paperwork that gets filed to officially settle the matter.
Can Mediation Be Used Against Me?
The entire mediation process is confidential. In fact, with very few exceptions, anything you talk about in mediation cannot be admitted later in court, even if the process fails and a trial is necessary. These are some of the limited exceptions, which your lawyer can explain in more detail:
- If both spouses agree to disclose certain information to the court
- If the mediator suspects child abuse
- Any other disclosure required by law
Suppose during mediation you offer to pay your spouse a certain sum of money for alimony. The mediation fails so the issue of spousal support goes to court. At trial, you argue against paying alimony. The other spouse cannot bring up the offer you made in mediation to use against you.
The Advantages of Divorce Mediation
Compared to traditional litigation, divorce mediation offers advantages such as:
- Control. Spouses, instead of the judge, get to decide their divorce on their own terms. There are some limits to what spouses can legally agree to, especially with respect to children. But generally, the spouses are in control of the outcome.
- Personal knowledge. Remember, the judge in your divorce case will never know your marriage and the issues associated with your divorce as well as you and your spouse do. You and your spouse are best suited to decide the outcome of your divorce, and mediation facilitates that.
- Creativity. Mediation allows husbands and wives to devise creative solutions that family law judges don’t have the time or desire to. You can take time in mediation to come up with these solutions so you can settle the case as you see fit.
- Confidentiality and privacy. The confidentiality guarantee permits the spouses to frankly discuss their differences without fear of those conversations later being used against them. Also, mediation can avoid a public and potentially embarrassing trial, protecting the privacy of the spouses and their children.
- Less money, time, and stress. Mediation typically saves money and time that might otherwise be spent on extensive litigation. It is also generally less stressful than going to trial. Rather than having to wait for the clerk to schedule your divorce on a crowded court docket, you can potentially resolve your divorce much earlier.
- Communication. A successful mediation can pave the way for productive future communications between spouses. This is especially important if the spouses have children because they will have to deal with each other for as long as the child is a minor.
Is Mediation Always a Good Idea?
While mediation offers several advantages, it’s not right for every divorce. These are some examples of when mediation is not or may not be advisable:
- High-conflict divorces
- Divorces in which the spouses are unable or unwilling to communicate with each other
- Divorces that involve allegations of domestic violence or child abuse
- Divorces in which one spouse suspects the other of concealing assets or information
- Divorces that involve a major imbalance of power (e.g. financial resources) between the spouses
- Divorces in which one spouse psychologically manipulates or dominates the other
Contact Our Phoenix Divorce Mediation Attorney
Divorce isn’t easy. But mediation can take much of the drama and pain out of the process. If you and your spouse are headed for divorce, or a court case has already been filed, it’s time to discuss your options with Cohen Family Law. Call us today to learn more about how we represent clients in mediation.