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Everything You Need to Know About Divorce Mediation
Divorce can be a deeply painful process. You must unravel years or even decades of your marriage in just a few short months, revealing the most difficult moments. When seeking options to finalize your divorce, you may want to inquire about more private methods, such as mediation.
Unlike traditional divorce methods, divorce mediation allows the more personal aspects of your separation to be discussed in a private, confidential setting. Mediation enables you and your spouse to stay in control of the things that matter most to your family, including child custody and spousal support.
Though there’s no real shortcut to dissolving your marriage, divorce mediation is about as close to one as you can get, and a trusted family law attorney can help. Here’s everything you need to know about divorce mediation, as it relates to Arizona, including how to decide if it’s right for you.
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Divorce Mediation Basics
Divorce mediation is a voluntary separation process, although some judges may require it in some cases, for spouses to resolve their divorce-related issues outside of court. Divorce mediation cases conclude in an uncontested divorce, in which both spouses agree on all issues rather than attend a trial to have a judge make those decisions for them.
Divorce mediation allows couples to work together in a rational, private environment to discuss separation specifics behind closed doors. It empowers couples to make decisions that work in the best interest of their family and their finances, including property division, spousal support (alimony), child support, child custody, and a healthy co-parenting plan.
So what’s the difference between a divorce mediator and a divorce lawyer? Each spouse meets with a neutral third party, called a mediator, to discuss their desired divorce mediation outcomes. Though a mediator is often a family law attorney, they cannot represent either spouse during the separation and will not offer legal advice.
Instead, the mediator will provide helpful solutions to both spouses to help resolve lingering disputes and work towards a final agreement.
Once both spouses find common ground, a mediator prepares a mediation agreement that contains all of the terms agreed-upon during the mediation. The mediator can then be hired to prepare a Consent Decree (also known as a divorce settlement agreement or marital settlement agreement) that contains all of the agreed-upon terms in the format required for filing with the Court. The mediator can then assist with filing the final divorce documents with the Court.
Divorce Mediation vs. Other Divorce Options
When seeking methods to dissolve your marriage, it may come as a surprise that there are numerous ways to divorce. Divorce mediation is a type of alternative dispute resolution (ADR) for separation, which means divorce mediation vs. litigation are significantly different.
Here’s how divorce mediation compares to other common separation options.
- Traditional (Litigated) Divorce. Also referred to as contested divorce. This usually requires multiple court proceedings to discuss child custody, alimony, and more. A litigated divorce can take more than a year to conclude.
- Collaborative Divorce. This type of divorce requires both spouses to retain a divorce attorney fluent in collaborative law, so each spouse and their attorney can negotiate in four-way meetings. Collaborative divorce allows each party to consult with joint experts, like joint financial planners, though the attorneys must withdraw from the case if both spouses cannot agree.
- Divorce Arbitration. This type of separation requires both spouses to hire one neutral attorney that acts as a private judge for their unresolved issues. The arbitrator has the power to make the same decisions as a judge, and the arbitrator’s decisions are binding. Arbitration hearings often occur much faster than in the regular family court system.
- Divorce Mediation. This type of divorce does not require either spouse to retain an attorney, but the parties are each welcome to bring their attorney to offer them legal advice. This typically encourages both parties to work with a neutral mediator to reach a final agreement. With the help of a mediator, couples entering divorce mediation can avoid discussing private family matters in a public family court and more discreetly dissolve their marriage.
Mediation has become the more attractive separation option for numerous reasons, primarily because it’s more private than litigated divorce and more cost-friendly than collaborative divorce. Likewise, mediation empowers couples to make their own decisions outside of the courtroom, whereas litigation and arbitration leaves critical family matters in the hands of a third-party.
Mediation Pros and Cons
There are several benefits of a private mediation divorce process, namely that the discussion related to the separation remains truly private. Aside from the mediator, each spouse, and potentially each spouse’s attorneys or necessary experts, no members of the public are involved with the personal and financial details that influence divorce decisions.
Other pros of mediation include:
- Divorce mediation costs less. Traditional divorce may cost two to ten times more than mediation.
- Neutral party for negotiations. A neutral mediator can help ensure civil, collaborative decision-making.
- Retain power over the divorce terms. Ultimately, the parties must reach a final agreement. The Mediator does not have the power to decide the terms of the marital settlement agreement.
- Informal and flexible process. Mediation sessions are scheduled around each spouse’s availability and provide adequate time for dispute resolution.
- Less time-consuming than litigation. Divorce mediation allows a couple to file Consent Decree, which can be finalized much quicker.
Of course, there are situations when divorce mediation is not recommended. Here are a few cons of mediation to also consider:
- Potential to negotiate unrepresented. Couples who do not retain a divorce attorney to attend mediation with them will each need to negotiate on their own behalf as the Mediator must remain neutral and cannot offer legal advice.
- Requirement of equal cooperation. Both spouses must commit to attending mediation prepared to discuss settlement. This means being both mentally ready to resolve the divorce and having all the knowledge about the marital community necessary to reach an agreement.
- Not suitable for a power imbalance. Mediation relies on trust and truthfulness, so spouses should retain an attorney in cases in which there may be a power imbalance, that is where either may be uncomfortable advocating on their own behalf.
- Active participation in the divorce. Mediation requires full engagement. Each party must come to the mediation prepared to discuss settlement. They must have an idea of how they would like to resolve the issues and know the information necessary to help them make that decision. Otherwise, the mediation may not be successful.
How the Divorce Mediation Process Works
One of the major perks of divorce mediation is that it allows you to adapt the process to best fit your needs. For instance, couples in the midst of divorce litigation may enter mediation to resolve their issues without heading to family court. On the other hand, some couples opt for mediation first—and will not retain an attorney—to amicably resolve their issues and dissolve their marriage.
When entering mediation, you should anticipate a bit of homework on your end. This can include, reviewing the needs of your children, reviewing the financial state of the marital community, writing your mediation memorandum, and potentially attending multiple mediation sessions. If both parties are prepared for mediation, full agreements can be reached in one session. However, it is possible there may be a need to schedule additional sessions.
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How Long Does Mediation Take?
How long a divorce mediation takes varies across divorce cases, though most couples can reach a resolution within a full day session. Each mediation session can vary in duration, from one to two hours for minor disagreements to a full day for more complex issues.
How Are the Divorce Documents Filed?
If you reach a full agreement at mediation, the Mediator will draft a mediation agreement that identifies all of the agreements reached at mediation. From there, the parties can hire the Mediator to assist them with drafting the documents necessary to file with the Court.
Once the appropriate documents have been filed with the Court and any appropriate mandatory waiting periods have passed, the Judge assigned to your case can review the final divorce agreement. If approved, the judge will officially dissolve your marriage and establish the terms of your divorce.
Will My Spouse and I Have to Appear in Court?
It’s rare for divorcing couples who opt for mediation to appear in court. A prominent benefit of divorce mediation is to avoid family court altogether.
If a judge approves your divorce settlement, you will be officially divorced. In the rare event a judge denies your agreement, you may need to seek advice from an experienced family law attorney to help both guide you procedurally and cure whatever issues the Court had with the agreement.
5 Steps to Prepare for Mediation
The divorce mediation process can be the simplest, most straightforward method of dissolving the marriage. However, it is still a legal process and will require a bit of preparation from you and your spouse. When preparing for mediation, follow this five-step divorce mediation checklist.
1. Consider You and Your Spouse’s Mediation Goals
Each couple enters mediation with a laundry list of unresolved issues. Before attending your first mediation session, be sure to jot down the most important goals you and your spouse have for divorce mediation, such as a healthy co-parenting plan or fair division of marital property. This is typically done in the individual mediation memorandums. These memorandums are provided confidentially provided to the mediator. The mediator then uses the memos to structure the mediation.
2. Choose a Knowledgeable, Qualified Divorce Mediator
You always want a trustworthy mediator to help you through this process. When preparing for mediation, look for a family law or divorce attorney who offers mediation services. These individuals are knowledgeable in local state law regarding matters like child custody and spousal maintenance and, although they cannot offer legal advice, they can propose resolutions to common problems encountered by divorcing parties.
3. Decide How You Will Pay for the Mediation Services
It’s very common for spouses to split the costs of mediation services equally, but that does not mean that an even split is best for your unique situation. Once you decide on a mediator and have inquired about typical fees, discussing how you will divide the cost of mediation is important.
4. Prepare for Mediation Sessions
Submit your mediation memorandum on time. Review any information you need to prior to attending mediation. Attending mediation organized and knowledgeable goes a long way to having a successful mediation.
5. Gather the Appropriate Documentation
Like any other legal proceeding, divorce mediation requires the appropriate documentation to corroborate each spouse’s claims. For the most proactive divorce mediation, you’ll need to have a clear picture of your marital community. So it is beneficial to review and sometimes even bring documents and other articles of information to help guide during mediation.
The documents you should gather and review to prepare for mediation include but are not limited to:
- Official court documents, such as copies of your prenuptial or marital contracts.
- Assets and marital property documents, such as shared real estate deeds, current investment statements, and private party value statements for all shared vehicles.
- Personal and shared liabilities, such as current balance statements for all mortgages, home equity loans, motor vehicle loans, student loans, and other private loans.
- Income and tax documents, such as bank account statements, recent pay stubs, W-2 or 1099 agreements, and federal and state tax returns.
- Child-care-related information, such as childcare costs, health insurance costs, and the schedule and location of all current extracurricular activities.
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Getting Started with Divorce Mediation
Divorce will never be easy, but a trusted divorce mediator can make as the process as painless as possible. Successful divorce mediation will keep your private family matters out of the public eye, eliminate the need for family court, and encourage an amicable split with your spouse.
If your case is in Arizona and you’re ready to take the first step toward dissolving your marriage, reach out to a law firm with extensive experience in mediation services. At BTL Family Law, our mediators have more than 30 years of experience helping divorcing couples reach actionable solutions for their separation.
Contact BTL Family Law today to schedule your consultation for divorce mediation.