Divorce Mediation: How Does It Work and Is It Right for You?

During a divorce, it’s likely that you and your spouse don’t see eye to eye on all marital issues. Getting in front of a judge can be daunting and expensive. Fortunately, there are other alternatives. Mediation offers a less costly and more collaborative way to resolve your differences and get an amicable divorce. 

An increasing number of divorcing couples are opting to undergo divorce mediation. It’s an alternate divorce method, where couples work with a mediator over battling it out in court.  

Divorce mediation is an alternative dispute resolution (ADR) method. Unlike traditional divorce litigation, mediation is an out-of-court process that allows couples to have more control over their divorce outcome. It’s also less expensive and generally gives quicker results than the traditional divorce process. 

In divorce mediation, the couple works with a divorce mediator—a trained and neutral third party—to iron out their settlement terms, such as property division or alimony. Divorce mediators don't offer legal advice, nor do they make the final decision on contested issues like a judge does. 

Instead, a divorce mediator's role is do to the following:

• Create a safe and neutral environment 
• Listen to both parties
• Ensure both parties are heard
• Identify issues and priorities 
• Facilitate communication
• Promote compromise 
• Suggest creative solutions
• Prepare divorce settlement

These private settlement discussions occur outside the courtroom or online; the goal is to resolve disagreements without going to trial. Divorce mediation is often considered a “one-stop” process because the mediator helps the couple prepare a complete settlement agreement, which can be sent to the court for final stamp and seal. 

Do note that in some states, divorce mediation is part of the traditional divorce process, while in others it’s up to the couple’s discretion to use this method. Consult an in-state attorney to find out what your state’s standing on mediation. 

5 benefits of divorce mediation 

Divorce mediation offers several advantages over battling it out in court. 

• Saves time. You and your spouse control the divorce mediation timeline, not busy court calendars or legal deadlines. 
• Pocket-friendly. Based on a recent survey, the average cost of a traditional divorce is a hefty $11,300; divorce mediation costs between $3,000-$5,000. 
• Offers greater control and flexibility. Divorce mediation has a collaborative nature and the focus is reaching a midway point together. Unlike a trial, where the judge will pass the verdict, you also get more say in the matter. 
• More customization. Mediation allows you and your spouse to devise a tailored parenting plan that meets your needs and schedules. In litigation, the courts will decide child custody and visitation arrangements, and the judge will never know you or your family dynamics, as well as the two of you. 
• More privacy for the kids. In court custody battles, children involved might be called in to give their statements. Mediation protects them from the emotional stress and glare of a court setting. 
• Confidentiality. Information exchanged during mediation sessions stays private and confidential. Discussions are shielded from public scrutiny that litigation could bring. Privacy could be vital if there are children involved. 

When is divorce mediation not recommended? 

While mediation is a less stressful way of ending your marriage, it may only work for some. Traditional mediation might not be successful in the following circumstances. 

Evidence of domestic violence or abuse

Instances of extreme power imbalance, like domestic violence, emotional abuse, or child abuse, are red flags for mediation. The process can be outright dangerous because the abuser may use the process to manipulate the victim further or harm the child. 

For instance, in divorce cases that involve domestic violence, one party is often scared to speak freely and may agree to any terms because they fear the repercussions they may face. For mediation to work, both parties should feel safe to voice their needs. 

Even if there’s an imbalance of power without a history of abuse or violence, it's crucial to explore alternative resolutions. A controlling, manipulative, or financially better-off partner can dominate the mediation process. The ongoing power dynamics and uneven playing field can result in an unfair settlement.

Lack of transparency

Fairness in divorce mediation relies on financial transparency. However, divorce mediation lacks a formal discovery and exchange process, and mediators cannot legally demand disclosure. This means both parties must voluntarily disclose their assets, debts, and financial matters in good faith.

Mediation might not be the best choice if you have concerns that your spouse needs to be more upfront about their financial situation, as hiding assets or debts can result in a lopsided settlement that favors them. 

Unwillingness to compromise or communicate

Mediation requires full and active participation from both spouses. If one spouse is intentionally dragging their feet and delaying discussions, you might need the court's backing to get them to comply. Successful divorce mediation is dependent on compromise and communication. If you and your partner always have your guard up, meditation might not be the method to adopt. 

Impaired decision making

If one spouse has a disability that impairs their judgment and decision-making ability, there is no assurance they understand the terms and clauses they agree to.

The divorce mediation process: 5-step guide 

If you’re considering divorce mediation, it’s best to learn how the process works. Divorce mediation generally follows a five-step process. 

Step 1: Find a divorce mediator

If you and your spouse agree to divorce mediation or are ordered by a judge to mediate your divorce, your first agenda should be to find a qualified mediator. While divorce mediators can come from any profession and don’t necessarily have to be licensed attorneys, it's best to hire someone with a strong understanding of family law.

There are a number of ways to find a divorce mediator:

• Tap into your personal and professional network
• Research online mediator directories or professional associations like the Academy of Professional Family Mediators or National Association for Community Mediation (NAFCM)
• Contact your court’s administrative office
• Search your state’s bar association 

It’s recommended that you and your spouse find mediators independently and share your top three picks. Don't forget to ask questions like, "What's your experience in mediation?" and "How would you describe your mediation style?" It will help you assess whether the mediator is the right match.

Step 2: Schedule a first meeting

The initial meeting focuses on establishing ground rules and setting expectations so the mediation process works efficiently. The mediator will explain how the mediation process works, clarify concerns, and may even ask both parties to sign a confidentiality agreement. 

The first mediation session is also the ideal time to give the divorce mediator a brief background of your marriage: how long you’ve been married, why you are splitting, and which divorce-related issues need attention (child custody, spousal support, asset division). 

Based on this information, the mediator will highlight applicable legal rules. To give an example, the mediator might explain your state's disclosure laws or child support guidelines. 

Step 3: Gather and exchange information

Unlike a traditional divorce process, there’s no formal discovery process in the mediation proceedings. But to reach a fair agreement, you and your spouse should exchange any relevant documentation that clearly demonstrates each party’s financial standing, needs, and circumstances. This information will help you make informed decisions about child support, asset division, and other pressing matters.

Documents exchanged could include:

• Bank statements
• Loan paperwork
• Paystubs
• Asset appraisals
• Child-related expenses
• Children’s schedule
• Life and health insurance policy statements

If you can't locate the necessary document, the divorce mediator will suggest alternate ways to attain crucial information. 

Step 4: Negotiate terms

Once the divorce mediator grasps the divorce issues and each party’s interests, and there’s a fair exchange of information, the negotiations begin. Negotiations involve listing all the problems and brainstorming possible resolutions or compromises.

A mediator will often summarize your viewpoint or ask for clarification to ensure they are on the same page. They may also request more information about specific issues. This helps divorcing spouses to see the problem in a new light and think of mutually agreeable solutions.

Mediators will also use mutually agreed agendas to keep the discussions on track and away from distractions. 

Step 5: Draft and file a settlement agreement

Once you have reached a consensus on all marital issues, the mediator will help you draft a divorce settlement agreement. Each party will get a chance to review this final agreement, and you can even get a lawyer to review it. 

Even if both parties sign the mediation agreement, your divorce isn’t final or legally binding. You must file the marital settlement agreement with the local courthouse and wait until the judge approves a final divorce decree. Many mediators will assist with the filing of marital settlements, but ask if they provide this service while choosing a mediator. 

Collaborative divorce vs. mediation: What’s the difference?

Collaborative divorce is an emerging ARD method that’s quickly gained popularity because it allows the opportunity for an amicable, less stressful, and more cooperative way to settle than a drawn-out court battle. In states where collaborative divorce is available, spouses—alongside their specially trained collaborative divorce attorneys—agree to dissolve their marriage using cooperative techniques. 

While collaborative divorce does have some similarities with mediation, it’s not exactly the same. Let’s find out how they differ. 

Key differences 

The main distinction between these two out-of-court processes is that in collaborative divorce, each party is represented by a licensed collaborative divorce attorney who can provide legal advice. Your collaborative attorney, who is trained in collaborative law, is on your side and will advocate your interests. In mediation, neither spouse is required to have an attorney present and the mediators must remain completely neutral—and can’t provide legal advice. 

Collaborative divorce may also involve other professionals who can help reach a settlement. For instance, a Family Relations or Custody Specialist might be called to weigh in on discussions around child custody arrangements and visitation rights. In the mediation process, the spouses just work with the mediator. 

The collaborative divorce process is also more structured. Each party and their legal counsel go through the entire divorce procedure, such as discovery and information exchange, but outside the courts. 

Comparing the benefits

Each divorce method has its own advantages and disadvantages. The plus points of collaborative divorce are as follows: 

• Expert legal advice. At every step, there’s a legal professional in your corner who can give legal guidance and explain the details of the scenario. With mediation, spouses don’t need to have an attorney. Any complexities or details might be overlooked.
• Inclusion of various professionals. Collaborative divorce can bring in experts who can explain the implications of any call you wish to take. Their expertise can lead to a more cohesive and fair settlement. 
• Dedicated advocate. Your needs and interests need to be heard through the negotiation process. A collaborative divorce attorney won’t let your voice get lost in the mediation process if you struggle with expression or confrontation. 

A limitation of collaborative divorce is that it tends to be more expensive than mediation because it calls for hiring your own legal counsel. Also, if the collaborative divorce process fails, you are back at square one and must seek new legal representation. The same collaborative divorce lawyers can’t be on your team if you go to trial. 

On the other hand, mediation comes with its own set of benefits:

• More flexibility and control. The process is less formal and commonly involves just three people—you, your spouse, and the mediator. There’s no requirement to have an attorney. This allows you to move at your pace and set your own rules. 
• More cost-effective. The active participation of attorneys and other experts can quickly drive up the cost of collaborative divorce.  
• Faster. Mediation is typically a faster process than collaborative divorce.

If you decide to consult an attorney, check out LegalZoom’s marriage and divorce attorney database to find an experienced and affordable legal expert.  

When to choose each option 

Your case’s unique circumstances will dictate what type of approach is best for you: collaboration or mediation. 

Mediation sessions may be preferable when the marital issues are fairly straightforward, both parties agree on everything, and both parties are comfortable making decisions without legal guidance.

A collaborative divorce may be the better choice when couples face these scenarios:

• Complex situations. Couples facing complex issues like child custody, jointly-owned businesses, or property division will find collaborative divorce a better fit. If you're unsure about negotiating your rights, an experienced lawyer by your side will give you peace of mind.
• Need for formality. Couples who prefer structure, formal meetings, strict timelines, and clear goals can benefit from the collaborative divorce approach. The respective attorneys will efficiently drive the process and set deadlines to keep things on track. This differs from mediation, which is a less formal process, and the mediator has no legal power to enforce agreements or keep the process moving ahead. 
• Power imbalance. If there’s a power imbalance in your relationship or you’re uncomfortable expressing yourself (or prefer not to), a collaborative divorce attorney can be your voice through negotiations.  

Getting a divorce is a difficult and sensitive matter. You have the option to select a non-adversarial process that best aligns with your relationship’s needs and goals.

FAQs

How much does divorce mediation cost?

You can expect to shell out $150 to $300 per hour for non-attorney mediators and approximately $250-$500 for attorney-mediators. You’ll also be expected to pay any associated court fees to get the judge to approve your mediation agreement. The final figure boils down to the mediator’s experience and skill, geographic area, divorce issues at hand, and how well you and your spouse communicate. 

How long does divorce mediation take?

A simple and straightforward mediation process—where couples are easily agreeable and there are no complex assets or children involved—can typically take between a few weeks to three months to settle. A case with significant property or financial dispute can typically take between three months to a year to resolve.

What happens if mediation fails?

Don't fret: There are alternatives if mediation doesn't pan out the way you hoped. You can try collaborative divorce as a second shot to settle matters outside of court. In collaborative divorce, you'll have your own lawyer who will provide legal advice and advocate your interests.