Divorce Mediation Checklist: What To Expect. How to Prepare.

Divorce mediation is becoming increasingly popular to resolve divorce cases without going to court. However, couples who choose mediation may only get the most out of the process if they prepare.

This article covers everything you need to know about a successful divorce mediation before you attend the first meeting. Preparing documents and thinking through important issues will help you achieve optimal results.

We also have a checklist of questions to ask yourself before you go to mediation and tips on preparing for your first session.

The information in this article is for general educational purposes only and not intended to provide specific advice or recommendations. Please discuss your particular circumstances with an appropriate professional before taking action.

What is Divorce Mediation?

Before we get into our checklist, let’s examine what mediation is and its role.

Divorce mediation is an alternative dispute resolution (ADR) method. More specifically, it’s an alternative to a traditional contested divorce litigated in court.

Mediation involves two parties discussing issues about their divorce settlement with an impartial third party, the mediator. These discussions take place outside of court, and the goal is to resolve matters without litigating your divorce in court. Unlike litigation, the mediation process is far less adversarial and provides several advantages. We will explore the benefits of mediation, including saving money, reducing the impact on children, and minimizing stress.

However, it’s important to note that divorce mediation is not always successful. Mediation is only feasible if both parties are willing to participate and compromise. Sometimes, couples cannot agree on a settlement.

What is a Mediator?

In mediation, a third party, party, called a mediator, acts as a neutral observer and helps the parties understand each other’s positions and negotiate a settlement. Mediators are trained professionals who specialize in conflict resolution. Some states require that couples seeking legal separation go through mediation. Many courts encourage divorcing spouses to seek mediation before filing for legal separation or divorce.

Mediation is often an excellent option for couples with trouble communicating but who do not want to endure contentious and stressful divorce proceedings.

Are You and Your Spouse Good Candidates for Divorce Mediation?

Mediation is a process in which two parties involved in a dispute sit down together and attempt to resolve the issue without fighting it out in open court. While mediation is not always successful, it can save both parties money and stress. The many benefits of divorce mediation include avoiding lengthy court proceedings and allowing the parties to avoid hiring lawyers.

However, mediation isn’t suitable for every situation. The only solution for a small number of cases is going to court.

Here are a few questions to consider; If you agree with these points, you will likely be a good candidate for mediation.

  • Does your spouse support mediation?
  • Are you inclined to settle without going to court?
  • Are you and your spouse willing to negotiate?
  • Have you already discussed how you might split property and arrange legal custody of your children?
  • Are you able to make compromises if needed?
  • Are you willing to be open and discuss all the issues?

What are the Advantages of Divorce Mediation?

  • It’s inexpensive compared to hiring divorce attorneys due to lower mediator fees and splitting those fees with your spouse.
  • Avoids the delays inherent in court procedures
  • The mediator guides the process, promoting dialog and moving the settlement forward.
  • Mediation is voluntary rather than forced by one spouse upon the other.
  • Informal compared to court proceedings
  • Mediation may result in a better post-divorce relationship with your former spouse.
  • Mediation may be easier on the children due to the non-adversarial approach.
  • Rather than relinquishing decision-making power to a judge, you have an active role in your future.

What are the Disadvantages of Divorce Mediation?

  • Mediators cannot provide legal advice. If you don’t know your legal options, you could place yourself at a significant disadvantage.
  • Mediation depends on honest, open dialogue. Abusive situations or significant differences in power do not lend themselves to mediation.
  • Suppose your spouse does not disclose certain assets. In that case, the assets may never be discovered without an attorney and perhaps a forensic accountant as part of the team.
  • Even with the best intentions of the mediator, there is no guarantee of an equitable settlement.

Collaborative Divorce vs. Divorce Mediation

Collaborative divorce is a legal procedure where both spouses are represented by attorneys and work together to create a mutually agreeable settlement, avoiding emotional turmoil and expense. Practices vary, but collaborative divorce may involve other consultants to address financial and psychological issues.

The goal is a settlement agreement that details every aspect of the divorce, including financial issues such as property division and alimony payments. Under certain circumstances, one spouse may agree to pay the other spouse’s legal fees.

Mediation may or may not involve attorneys (acting as consultants or advisors). Instead, a professional mediator guides the sessions, encourages communication, and helps the parties reach an amicable agreement.

Court Litigation vs. Divorce Mediation

Litigation is a process that involves two parties resolving their case in court. That will likely involve lengthy court proceedings, during which each party is in an adversarial stance with the other. Ultimately, a judge decides every aspect of the case: asset division, child custody, spousal maintenance, and other issues. Generally, litigation is much more expensive, time-consuming, and stressful than alternatives.

Mediation is an “alternative dispute resolution” method known as an ADR. Trained professionals called mediators to resolve disputes outside the courtroom. Rather than a possibly contentious legal proceeding, spouses agree to meet with a mediator to discuss their differences. The mediator helps spouses understand each other’s viewpoint and to arrive at agreeable terms. After an agreement, the mediator writes down the settlement details and sends them to the lawyers representing both sides (assuming an advisory divorce attorney is involved). Then the lawyers present the settlement to the judge, who approves it. Both parties pay their own attorneys’ fees, and the case ends.

Divorce Arbitration vs. Divorce Mediation

Arbitration is similar to mediation in that costs are kept in check, the process moves quickly, and your case stays out of court. The critical difference is that the arbitrator makes the decisions.

You and your spouse agree to hire a private judge, known as an arbitrator, to decide what happens in your divorce. The arbitrator will hear both sides and decide how to divide the marital estate. Arbitrators determine every aspect of the settlement: child custody, property division, alimony, and even attorney fees. Most people don’t realize that most states allow you to use arbitration to settle divorce disputes.

However, the arbitrator’s decision is generally binding. That is, you must live with the decision. The uncertain nature of family law cases introduces risk; some might appreciate the clarity and finality that arbitration brings, but others are uncomfortable taking on the risk of arbitration.

Is Divorce Mediation the Right Choice?

Mediation is an excellent option for couples undergoing a challenging separation or divorce. Instead of fighting over money and marital assets, both parties work with a neutral third party to resolve issues like child legal custody, visitation rights, and spousal support.

A mediator doesn’t take sides; they listen to both parties and try to help them reach an agreement that works best for everyone. Mediators aren’t lawyers, so they can’t give legal advice or represent either side in court. Mediation has many benefits, including lower costs, faster resolution, and increased client satisfaction. Mediation is much less stressful than litigation, which may lead to emotional problems such as depression and anxiety.

A successful mediation depends on you and your spouse willingly participating in discussions about each other, your children, and financial issues. Of course, it means working with the mediator for the problems you cannot resolve.

What Are the Issues Addressed During Mediation?

Your issues may be more expansive, but typically the problems that spouses should address in mediation include these: financial, property division, child custody, visitation rights, and alimony (spousal maintenance). Also, be sure to negotiate the terms of any prenuptial agreements, assignment of debts, communication preferences, and ways to resolve disputes as they arise.

Questions to Consider Before Committing

Think through these questions before committing to mediation:

  1. Is your spouse on board with the idea of mediation? Mediation requires open, active participation of both spouses.
  2. What are you trying to achieve? Are there specific topics you have not been able to agree on with your spouse? Which issues do you think will require the mediator to discuss and resolve?
  3. How much money can you and your spouse spend? You can tune your mediation budget to a certain extent towards a figure you and your spouse can afford. Suppose you can agree on at least some issues before mediation. In that case, that will help the mediator focus their time on “stickier” points that require their expertise to negotiate.

The Eight Basic Steps of the Divorce Mediation Process

Consider mediation as an eight-step process:

  1. Selecting an experienced mediator
  2. Meeting with the mediator
  3. Providing information
  4. Attending divorce mediation sessions with your spouse
  5. Negotiating the marital settlement agreement
  6. Preparing legal documents
  7. Filing the settlement agreement with the court system

Checklist: Preparation

The central concept of mediation is to facilitate communication between the parties and to solve disputes cooperatively with the help of a mediator. To that end, you meet with the mediator at the beginning of the process to outline the issues. Expect to submit a statement that details your main concerns or points.

Here are some questions to consider before starting the mediation process:

  • What do I want?
  • How long am I willing to wait?
  • Is there anything I won’t discuss?
  • Do I want to negotiate?
  • How did we come to this decision?
  • Do we agree on the division of assets?
  • Do we agree on child custody arrangements?
  • What financial concerns do we have?

Checklist: Financial Disclosure Documents

Financial disclosures are critical documents. Be careful here. Do not submit incomplete or inaccurate information. Typically you will provide a statement of assets and debts, along with a statement of income and expenses. The individual items listed below are attachments to the core disclosure documents.

Remember that assets in some states may be community property, separate property, or a blend. If you’re unsure about your ownership interest, consult your independent attorney.

Consider involving a forensic accountant to establish valuations for business ownership or complex income structure issues. Do not guess asset values; require a valuation or appraisal expert. You and your spouse may hire the same expert or separate experts.

  1. This list of financial disclosure documents may be incomplete. Bring any other records your mediator requests:
  • Bank statements
  • Business interest valuations
  • College Expenses, additional tuition
  • Credit card statements
  • Executive compensations statements
  • Health insurance declarations
  • Individual investment statements
  • High-value personal property list — furniture, appliances, jewelry, watches, collectibles
  • Investment Statements
  • Life Insurance Policies
  • Loan and debt information
  • Medical bills and proxies
  • Pay stubs
  • Personal loan statements, including student loans
  • Real estate valuations
  • Real property deeds
  • Retirement and pension statements
  • Tax returns
  • Vehicle valuations plus ownership and registration docs
  • W-2 or 1099 statements
  • Wills or trust documents

Checklist: Other Documents

  • Marriage license
  • Children’s birth or adoption documents
  • Prenuptial agreements
  • Previous court orders related to the marriage, for example, custody or alimony matters.

Checklist: Child Physical Custody and Parenting Time

  1. Your local jurisdiction may provide guideline parenting plans. Acquaint yourself with those guidelines.
  2. In physical custody arrangements, the parties can agree to any legal terms, from very rigid to highly flexible. Consider what you and your spouse can agree to and maintain.
  3. Negotiate which spouse will deal with children to and from school and to events. Also, where will hand-offs of the children take place?
  4. Negotiate holiday and vacation schedules: how much time is involved, which specific holidays or seasons are allowed to each parent, locational restrictions, and any other aspects of your case.

Checklist: Child Support

  1. Child support calculations often follow state guidelines. This list may not be complete; your mediator should walk you through each item that applies in your location:
  • Number of children
  • Percent parenting time for each parent
  • Tax filing status
  • Parent’s income
  • Other income
  • Health insurance costs
  • Business income deductions
  • Itemized deductions
  • Union dues
  • Mandatory government retirement
  1. Negotiate any additional child support required due to employment-related childcare costs, job training, or uninsured health care.
  2. How will bonuses, overtime, or other additional income be allocated for child support? Do such provisions apply to both parents?
  3. Who will pay for child health insurance costs?
  4. Children with special needs may incur additional costs.

Checklist: Spousal Support

  1. Work with your independent attorney to understand how spousal support works in your location. If you don’t have an independent attorney, familiarize yourself with the law that pertains to spousal support.
  2. Some states differentiate between short and long-term marriages; familiarize yourself with how the duration of marriage affects spousal support.
  3. Consider how much support is required to maintain the standard of living. Discuss this issue in mediation, especially with income that may vary over time.
  4. Will spousal support terminate on a specific date, or will it be open-ended until that spouse remarries or receives an order from a court?
  5. For additional income over base income, will there be a cap or limit on the extra income allocated to spousal support?

Checklist: Assets and Debts

  1. The settlement must clarify which spouse gets which community assets and the distribution of those assets. Similarly, debt obligations must be made clear in the settlement agreement.
  2. If you live in a community property state, document what assets are community property, separate property, or some mixed status.
  3. The mediator must know the value of assets to reach an equitable distribution. Get valuations of all community assets.
  4. Some community assets may be “encumbered,” meaning there’s a loan or mortgage. How will the associated loans be handled if one spouse receives assets in the settlement?
  5. If either or both spouses have interests in one or more businesses, especially if partners, shareholders, or members are involved, they should seek advice from a business attorney.

FAQs

What is a Qualified Domestic Relations Order (QDRO)?

A QDRO is a document that tells a court how to reach an equitable division of assets acquired during a marriage. A QDRO differs from a property settlement agreement, a contract between two parties that settles financial issues related to a divorce. A QDRO only applies to retirement accounts like 401(k), 403(b), and IRA plans. It doesn’t apply to IRAs or Roth IRAs. A QDRO isn’t required unless you file for divorce, but it’s a good idea to include one in your prenuptial agreement. A QDRO should specify how much money goes to whom and how it gets divided. It may require the payment of taxes on the distribution. It may also require that the recipient sign a waiver allowing the plan administrator to pay benefits directly to them rather than having the funds paid to the former spouse.

What if I Need Spousal Support?

If you need spousal support, sometimes called “alimony” or “maintenance,” you may be able to get ongoing financial assistance. Depending on your situation, there are many ways to apply for spousal support. Some states require spouses to file paperwork to request spousal support, while others automatically award it. Regardless of your state, you should consult your mediator or family law attorney to see if you qualify for spousal support. Your lawyer can advise you on the best options available to you.

What Is the Cost Difference Between Mediation and Litigation?

The cost of going to court versus hiring a professional mediator varies widely depending on many factors. One key difference is that the cost of hiring a lawyer is generally much higher than the cost of hiring a mediator. There are also additional costs associated with family law courts, such as filing fees, travel expenses, and attorney fees.

Divorce mediation costs vary widely depending on the details of your divorce and where you live. Uncontested divorces are relatively easy to complete, and the costs associated with these cases tend to be lower than contested ones. Contested divorces are much harder to resolve, and the fees are generally higher. However, the amount spent on legal fees doesn’t always indicate the outcome. A good mediator can help both parties save money and avoid unnecessary stress.

To determine the cost difference, evaluate mediators vs. family law attorneys (representing you or as a consultant) in your local market.

Do Mediators Deal With Child Custody Issues?

Yes, mediators handle all aspects of a divorce settlement, including child custody issues. Parents trying to avoid distressing children often agree to mediate their disagreements rather than go to court. Mediators listen carefully to both sides of the argument and encourage the parties to compromise on a parenting plan. Mediators aren’t allowed to give legal advice. Still, they can suggest ways to settle disputes and situations such as an absent parent.

Should I Hire a Local Mediator?

Divorce practices and laws vary by location, by local jurisdictions, and particularly at the state level. Therefore, hiring a local mediator is advantageous because the mediator would be familiar with local customs and state law. And practically speaking, your mediator should be convenient. The exception would be an online divorce mediation service that handles most of the process via video conferencing. Finding a good divorce mediator may be difficult if you live in a small town or rural area. However, hiring a professional mediator can save you money and stress, so keep looking.

How Long Does Mediation Take?

Depending on the circumstances, the process may take a few weeks or months to complete, with multiple sessions. Some mediation sessions can go longer. Each session typically lasts 1 – 3 hours.

Many factors affect how long it takes to complete the divorce process, such as the number of children involved, the amount of property owned, and the type of legal representation chosen. A mediator can only give advice and cannot force any party to agree to anything. However, they can help parties communicate effectively, negotiate, and resolve issues without litigation.

What Is “Mandatory Mediation”?

Mandatory mediation is a process where two parties involved in a divorce agree to participate in a mediated settlement conference. These conferences are held outside of court and include spouses and their attorneys. At these meetings, the mediator works with the couple to resolve issues such as legal custody of children, spousal support, division of property, and attorney fees. The goal of the process is to avoid going to trial, which can be expensive and stressful for everyone involved.

Mandatory mediation is becoming increasingly popular because it saves money and time for couples trying to settle their divorces without going to court. It also offers a safe environment for children to express themselves and discuss their concerns. However, mandatory mediation isn’t always successful. Sometimes, the parties cannot reach a divorce agreement during mediation, and sometimes, one party refuses to participate. In either case, the judge still decides the outcome of the case.

Who Attends Mediation Sessions?

At a minimum, both spouses and the mediator attend sessions.

One or both spouses may choose a family law attorney to provide further advice. Usually, both parties must agree to the presence of an attorney, either in person or by phone. Additionally, you may involve specialists in custody issues, divorce financial professionals, or other divorce consultants.

What are the Basic Guidelines of Mediation?

The first guideline is that mediation is voluntary; you must be willing to participate. The parties are not required to reach a fair agreement, and either party can stop the mediation for any reason. The divorce settlement agreement is only binding when both parties sign it.

Secondly, unlike court litigation, mediation is confidential. All disclosures are private.

Finally, mediation is privileged, which means spouses cannot later use statements made in mediation in court.

Does a Mediator Act as a Judge?

No. Mediators are neutral and do not force either party to resolve their case; they offer guidance and move the process along. Also, mediators do not enforce settlement agreements.

Should I Hire an Attorney in Addition to a Mediator?

Remember that a mediator is not an attorney; a mediator cannot provide legal advice to you or your spouse. However, you may hire a consulting attorney to provide legal advice to help you navigate any issue in mediation. A consulting attorney does not represent you or appear for you in court. The consulting attorney may recommend other divorce professionals to support your mediation, including a financial professional, mediation coach, or family counselor.

What if My Spouse Refuses Mediation?

Firstly, attempt some education; you might share this post or discuss mediation versus litigation. What if your spouse refuses to participate in mediation? In that case, you’ll need to hire an attorney to help litigate or otherwise resolve your issue. Ask your attorney about settling through the default process in your jurisdiction.

What if We Can’t Reach an Agreement?

When the parties move through the mediation process, they will sign a contract stating that they will abide by decisions made with the mediator’s guidance. However, you may be able to back out of the agreement before signing the papers at the end. What happens if you cannot reach an agreement with your spouse? In that case, your mediator should be instrumental in redirecting your case to another means of settlement. If you have already signed, you may be able to file a motion asking the court to set aside the agreement. You’ll still have to pay the fees associated with the mediation, and you’ll be able to appeal any fee decisions made during the process.

Conclusion

Divorce mediation is a process that allows spouses to reach a settlement agreement without having to pay expensive legal fees or risk an unexpected result in court. The checklist contains information to help you prepare for mediation if you should hire a lawyer, how to deal with sensitive issues like finances, and how to avoid common pitfalls during the mediation process.

Use this list as a guide to help you prepare for your next mediation session, or print it out and keep it handy throughout the process. Either way, we wish you luck in reaching a fair settlement!

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