The Ultimate Guide to Divorce Mediation

What is divorce mediation?

Simply put, divorce mediation is a process in which a neutral mediator helps divorcing spouses reach mutually beneficial agreements on all divorce issues. In mediation, spouses make their own voluntary decisions and personalize their divorce terms to meet both of their needs. The mediator does not decide who is right or wrong. The choice about whether to settle the case and avoid court is always up to the spouses.

Agreements are reached on all divorce issues: division of property and debts, spousal support, parenting issues including time sharing, child custody, and child support. Since all agreements are made in mediation, spouses never enter a courtroom, and avoid the conflict and stress of litigation.

In many states the mediator may also write your “Divorce Decree” or “Final Divorce Judgment” and submit it to the court to finalize your divorce.

Depending on the circumstances, mediation meetings can happen with the mediator and both spouses together (often called “joint session”). Sometimes, during mediation, the mediator will meet with each spouse privately (often called “private caucus”). This approach is used to help spouses come closer to common ground.

In most states, “mediation confidentially” is protected by law. This makes all communications in mediation and disclosure of documents confidential, unlike the public nature of the litigation process in court.

Spouses are more satisfied with the mediation process, compared to litigation. This is due to a number of mediation advantages including the fact that spouses discuss their interests in mediation (rather than fight over positions) and therefore, have the opportunity to have their interests met.

Why is mediation better than going to a lawyer?

Generally, using divorce mediation to settle divorce out of court take significantly less time than litigation, cost substantially less in legal fees, and result in far better agreements than using lawyers in court.

Mediation also has a primary goal of keeping conflict low. When spouses play out their divorce in litigation with attorneys, conflict can escalate quickly, causing legal fees and animosity between spouses to sharply rise. Conflict often escalates because attorneys tend to advise their client to stop communicating about divorce issues. This leads to misunderstandings and missed opportunities for spouses to simply agree on issues that become complicated by the formal litigation process.

Parents have a major interest in keeping conflict as low as possible to protect the well-being of their children. Parents will no longer be Husband and Wife, but will have an ongoing relationship with one another as co-parents. By choosing mediation, parents can choose to lay the foundation for the healthiest co-parenting relationship possible.

In mediation, spouses can also have an attorney to get legal advice at any time during the process. Spouses can also choose to have no formal legal representation, but still consult with a legal advisor for support. A responsible mediator will always encourage spouses in mediation to have their final Divorce Decree reviewed by a legal advisor or attorney before signing.

In some instances, such as when domestic violence has occurred during the marriage, a spouse may feel intimidated to make their own voluntary decisions in mediation. Although generally, attorneys do not attend mediation meetings, in these circumstances attorneys may be present. This decision is one that can be made with the guidance of an experienced mediator.

What is the difference between court-ordered mediation and private mediation?

Court-ordered mediation is just that: mediation that court requires as a part of a divorce proceeding. Some states have “mandatory mediation” for custody or visitation issues. Usually there no fee or low fee for court ordered mediation, however, these mediators are supplied by the court, mediation is time limited, and may only address limited issues related to children. Court ordered mediation may not be confidential.

Private mediation also covers all custody and parenting issues, as well as financial issues, property and debt division and spousal support. In private divorce mediation, all issues are settled. Private mediators usually charge an hourly or per-session fee, with a minimum of four hours. However, some mediators are now moving to charge flat fees for the entire process which gives spouses predictability of total fees. Private mediation is confidential.

Does the mediator meet with both spouses together or separately?

Some mediators meet spouses only together (in joint session), some only meet separately (in caucus), some use a hybrid of both approaches. Experienced mediators assess what spouses need, and adapt to the environment that is most beneficial for spouses.

In divorce and family mediation, the prevailing view is that as much as possible spouses who mediate in the same room together are able to develop more thoughtful, interest-based agreements.

Generally, we see trained professional mediators using joint session far more than career attorneys or retired judges who mediate and tend to use more of separate session mediation.

What is divorce mediation, and how is it different from arbitration?

There is no judge involved in mediator or arbitration. In mediation, the neutral party (the mediator) has no power to make decisions. The mediator’s job is to identify issues, explain the law, and help spouses communicate and find common ground to reach agreements. The mediator facilitates agreements.

In arbitration, the neutral party (the arbitrator) listens to the facts and then decides the case, quite similar to a judge in court. In a way, an arbitrator is a “private judge” that spouses choose to decide the issues in their case. In arbitration, spouses can present evidence and make arguments for their case, they have no say in the final decision, and the arbitrator’s decision is final.

Who can attend a divorce mediation?

Normally, just the spouses attend. There are times where the attorneys for each spouse will attend. It is not recommended to bring family, friends, employers, neighbors, etc. Depending on very specific circumstances, rarely, third parties may attend mediation if the mediator allows.

Who pays for the divorce mediation?

It makes no difference to the mediator who pays for mediation. Often times, the cost is divided equally between the spouses. Other times, the cost is divided in proportion to the spouses’ incomes. Sometimes, especially when only one spouse is an income earner, one spouse pays for all of mediation.

What happens during a divorce mediation?

What happens in a divorce mediation depends upon the mediator and the mediator’s approach to the entire mediation process. Generally, the mediator will help spouses understand each issue that needs to be addressed in divorce. These issues include how to allocate each asset and debt, spousal support, tax issues, and parenting issues such as time sharing with children, decision making, financial obligations and child support.

The mediator then helps spouses reach creative agreements that satisfy both of their wants and needs so that all issues are agreed upon, without fighting or a judge deciding for them. Successful mediation will feel like a conversation between spouses led by the mediator so that conflict is kept low and spouses have guidance.

Usually, mediation looks like both spouses and the mediator sitting around a round table. Depending on the mediator, and needs of the spouses, parts or all of the mediation process may take place with spouses in separate rooms. Eventually, all agreements are reached and all issues resolved.

When is a divorce mediation not recommended?

Where there is a history and pattern of domestic violence or child abuse, mediation may not be appropriate, unless certain safeguards are in place. In some severe circumstances, mediation still may not be appropriate.

The foundation of mediation is that each spouse has the freedom to enter into voluntary agreements. Intimidation or fear for one’s safety compromises the ability to enter freely into agreements. No spouse should ever be coerced into making an agreement.

Sometimes, when a victim of domestic violence wants to participate in mediation, but does not feel safe meeting with the other spouse, solutions are agreed upon: Spouses may meet separately and even at separate times, or attorneys may be present with spouses.

What to do when divorce mediation fails?

When spouses enter private voluntary divorce mediation, it is rare that mediation fails. National settlement rates commonly are reported between 90% – 97% for full settlement of divorce issues. In the small number of cases when mediation fails, it is most often because spouses cannot agree on one final issue, but have resolved all other issues in mediation. When this happens, spouses may choose to try another mediator on that issue, or have an arbitrator decide the issue, so that they can still avoid court. Rarely, but occasionally, spouses will proceed to trial in court on any issues not resolved in mediation.

How to survive divorce mediation?

Divorce is never easy, but divorce mediation alleviates as much stress as possible. It is not a terrible experience that you need to survive! Of course, you and your spouse will not always agree, and it will take effort and focus to be successful in reaching mutually acceptable agreements. There may be bumps during the road of mediation, but your experienced and skilled mediator to help you through the process.

The best way to “survive” mediation is to take care of yourself during the process. Practicing self-care is essential to getting through divorce in a way to minimizes stress on you, and your children. So, balance out the stress—you have permission to take care of yourself.

After each meeting, do something that provides you some sense of peace. Go for a power run, if that makes you feel good. Or, give yourself time to read a good book. In between meeting, try not to stay focused on the issues. Clear your head, focus on other things, try not to have your divorce issue on the forefront of your mind in your daily life—much easier written than done!

How to best negotiate a divorce mediation?

Mediation is rooted in interest-based negotiation, unlike litigation which is rooted in positional negotiation.

In interest-based negotiation the mediator seeks to understand each spouses’ interests, and help them understand one another’s interests. Interests are what each spouses wants and needs, and why they want and need those things. What are you hoping for that is causing you to want this? What are you afraid of that is causing you to need that?

When spouses engage in negotiations and discuss their interests, they most often find that they actually have common interests! Then, the question is how to craft agreements that meet their individual and common interests. When people negotiate in this thoughtful way, most often they are able to reach agreements that satisfy both of their interests. This is why spouses are far more satisfied with the outcomes of mediation than litigated outcomes in court. In litigation, attorneys argue over positions, which can be surface level and extreme. This win or lose mentality usually results in both spouses feeling like they have lost.

To prepare for productive negotiations in mediation go into the meeting understand your own interests! Have an idea of not only what you want, but why you want it.

What if my spouse is a narcissist, should I still do divorce mediation?

Mediation is a viable and successful option, even when engaging with a narcissist. However, the expertise of your mediator will be determining factor in preventing the narcissistic spouse from manipulating the process. Very clear boundaries need to be set by the mediator. Intimidating or manipulative tactics need to be effectively diffused in a way that the mediator is still impartial, and perceived as impartial.

How much does divorce mediation cost?

The total average cost of divorce mediation is generally 80-90% less than the total average legal fees in divorce litigation with attorneys. Mediation costs can be approach either on a “per hour” basis or “flat fee” basis.

Many mediators bill hourly, like attorneys. In this way, clients are charged for time the mediator spends on the case. Client are billed for time spent in meetings, emails, phone calls, and any time spent on the case, such as for drafting documents. Careful: $250 per hour sounds better than $300 per hour, but not if your $250 mediator spends 8 hours drafting your final agreements, when the $300 mediator would have spent 4 hours drafting the same agreement.

If you choose a mediator who bills by the hour you might ask for a regular statement of fees so that any issues can be addressed quickly. Ask whether your mediator would consider a flat fee for drafting documents—or better, a flat fee for the entire process. This can eliminate some of the unpredictability of fees for billing that occurs without you present.

Some mediators are now offering flat fees for the entire mediation process. Flat fee mediators maintain that the hourly billing contributes to the broken family law system. With hourly billing, professionals are paid for the amount of time spent on a case. Time is the result of ongoing conflict.

With flat fees, the professional is paid one amount and won’t bill per hour. That can give spouses control and predictability of fees. It can result in financial stability at a time when they need it most. Spouses are relieved to know what will be paid, and feel like they don’t have to rush through the process in order to save fees. Divorce mediation shouldn’t feel rushed.

Divorce: Where do you start?

When you decide that you are ready to move forward with divorce, before retaining an attorney or unilaterally filing for divorce and have your spouse “served” with divorce papers, your best first step is to understand everything you can about divorce mediation. Empowering yourself with information about how to go through your divorce in the healthiest way possible for you and your family will help you be ready to talk about this option with your spouse when you communicate that you want a divorce.

Research the benefits of mediation. Have an understanding of the cost and timeline differences between mediation and litigation. More importantly, if you have children, understand the emotional and psychological benefits to children when parents use divorce mediation, rather than have a court battle. Communicating this information to your spouse will led to a far better chance that he or she will be open to the idea of a more peaceful divorce in mediation.

You should also research the divorce mediators in your local area. Identify several options that you and your spouse may meet with for a consultation. Look for a mediator or mediation firm that specializes in divorce mediation. Try to get a sense of their reputation in the community.

Take the first step toward a low conflict divorce by going together with your spouse to a consultation with a divorce mediator. Find out together how you can avoid a divorce war by choosing a process that can take you both through your divorce without fighting. Beginning the divorce process with mutual overall goals of (1) keeping conflict low, (2) protecting the emotional well-being of children, and (3) keeping divorce costs low, will set the best possible tone and likely result in a much better process. Your mediator will let you know your next steps from there.

How does divorce work in Arizona?

Divorce, simply put, is the legal process ending a marriage. In Arizona, the legal term for divorce is “dissolution of marriage.” There are many decisions for you during the divorce process. The most common are dividing each and every asset and debt of the marriage, spousal maintenance (alimony), and parenting issues including parenting time, legal decision making, financial obligations and child support.

Divorce Proceedings in Arizona

Mediation vs. Litigation

The following are the steps that occur in divorce within the state of Arizona:

THE PETITION

This is where it all begins: The Petition.

In Arizona, one spouse files the Petition. This person is the Petitioner. The other spouse is listed as the Respondent. It makes no legal difference whom is listed as whom.

The Petition in Mediation

In mediation, an Arizona mediator who understands the importance of keeping conflict low, will ensure that the Petition is signed after mediation begins as part of the mediation process. Filing before mediation begins is a mistake that can cause conflict. In mediation, the Petition should be a benign document that states the required legal language requesting divorce as well as a statement that the Petitioner wishes to divide assets and debts fairly and make decisions that are in the best interests of the children. The Petition ends with a statement that all specific terms will be decided by the spouses in mediation. This broad, neutrally worded Petition works to keep conflict as low as possible. Experienced mediators will explain the Petition to both spouses together, so there is total transparency.

The Petition in Litigation

In litigation, the Petition typically includes an issue-by-issue outline of what the Petitioner is requesting in the divorce—the Petitioner’s demands. Each issue, or some issues may be covered: child custody, parenting time, child support, spousal maintenance, property division, asset distribution, attorney fees and other costs. These requests are often to the surprise of the other spouse. Too often, the Petitioner’s specific requests are perceived as “extreme” which can lead to significant conflict at the outset of the divorce process.

SERVICE OF PROCESS

One spouse signs the Petition. The other spouse signs a document accepting service. This happens in a different way whether spouses are in mediation or litigation.

Acceptance of Service in Mediation

In mediation, no one is “served” with divorce papers. Being “served” only can create conflict and is unnecessary in most cases. Instead, your mediator should prepare a document called “Acceptance of Service” for the Respondent to sign. This document waives formal service and acknowledges that the Respondent has received a copy of the Petition. This approach removes the need for any one being served, and therefore, can significantly lower conflict.

Formal Service of Process in Litigation

In litigation, typically, the Respondent is formally “served” with the Petition, Summons, and supporting court documents. This can happen by a process server or law enforcement officer of the court. The process server may find the Respondent at his or her place of work or home and physically hand the documents to the spouse.

THE RESPONSE

The Respondent may or may not file a Response.

The Response in Mediation

In mediation, the Response may never be filed. Since the Petition stated no specific terms, and spouses anticipate reaching agreements on all issues together, many times, no Response is necessary. Sometimes, a Response may be filed that simply mirrors the terms of the Petition and acknowledges the common requests of dividing assets and debts fairly and acting in the best interests of the children.

The Response in Litigation

In litigation, the Respondent is entitled to file, “opposing papers” or “the Response.” In the state of Arizona, if you are served with a Petition, you must file your opposing papers as the Respondent within twenty days if you are a resident in the state, or thirty days if you live out of state. Failing to do so you can lose your right to present your side of the divorce to the court. The worst outcome could be the court awards your spouse everything they requested for in the Petition. When the court grants dissolution of marriage after hearing from only one spouse, it’s called a default divorce.

TEMPORARY AGREEMENTS vs. TEMPORARY ORDERS

Temporary Agreements in Mediation

In mediation, the process most often begins with a discussion of reasonable arrangements during the divorce mediation process. The mediator will lead a discussion about how to bring as much stability to the process as possible. Temporary agreements between spouses may be reached on all the issues that a judge would issue temporary orders on. However, in mediation, spouses stay in control of their temporary agreement terms—in litigation, they have no control over a Judge’s temporary orders. Temporary agreements in mediation solve the issues immediately, at far less cost than a temporary orders process and have a more positive outcome than going to court.

Temporary Agreements in Litigation

In litigation, at the beginning of a case, either spouse can request of the court to make temporary orders. A judge will issue temporary orders while the divorce case is pending. Temporary orders can include, but not be limited to orders regarding temporary: spousal support, who remains in the residence, child custody, parenting time, child support responsibility of bills, etc. In Arizona, when children are involved in a pending divorce, the court will automatically create temporary orders for child support. However, this process can take several months to be completed and it is not ideal to wait for the court to make such decisions.

DISCOVERY

Each spouse is legally entitled to information regarding all assets, debts, and income between spouses. This process is called discovery. It can be a simple, quick process or one that is time consuming, conflict producing and extremely expensive. The depth of discovery depends upon on many factors, but mostly the size and value of the estate and the length of the marriage.

Discovery in Mediation

Discovery in mediation is as simple as completing a financial form provided by your mediator and bringing copies of certain documents that your mediator will ask you to bring with you to a mediation meeting. It is that easy. Any assets, debts, and income information must be disclosed.

The consequences for failing to disclose, or being dishonest or incomplete regarding disclosure are the same exact consequences if that behavior happens in mediation or litigation. A spouse who engages in such dishonesty could be found guilty of perjury and severely fined by the court. Additionally, a judge may void the finalized divorce decree and award disproportionate assets to the innocent spouse.

Discovery in Litigation

Discovery in litigation is an adversarial process in which attorneys maneuver to connect the same information that spouses voluntarily exchange in the mediation process. Many times the majority of the litigation process (and majority of legal fees) is spent in the discovery process. This is also where frustration can build and cause significant process. There are several different discovery procedures in litigation, sometimes referred to as discovery devices. The are:

  • Interrogatories.  This is a list of questions sent to your spouse, and they must respond with formal written answers by a certain time period.
  • Request for production. This is used to ask your spouse for specific documents.
  • Deposition. This is effective, but also expensive. This is essentially an examination before trial. Specifically, the deposition is to ask your spouse or other people questions in person and under oath.  This usually takes place in a lawyer’s office, with your attorney asking the questions, and including a court reporter who takes notes on everything that is said and then prepares a transcript of the deposition. If you serve your spouse with a deposition, you are responsible for the costs, not just for your attorney, but also for the court reporter as well.

    Your lawyers may be able to conduct discovery informally, without the formal procedures described above, but that is not always the case.  Informal discovery is almost always more efficient and therefore less expensive than formal discovery.

  • NEGOTIATED SETTLEMENT

    It is always more positive to resolve a case by agreement between the two spouses than to go to trial, both financially and emotionally. When spouses create their own divorce agreement, it’s called a negotiated settlement, which becomes a Consent Decree. This provides more privacy and control than a judge deciding divorce terms at a trial.

    Although your lawyer may recommend that you accept or reject a particular settlement proposal, the decision to settle or not to settle is yours, not your attorney’s decision. It is important for you to understand that your lawyer cannot and will not make that decision for you. You are in control.

    divorce-mediation-guide

    Negotiated Settlement in Mediation

    The entire mediation process is one giant negotiated settlement process. It happens in a respectful, low conflict way, in which spouses can communicate with one another with the help of a neutral mediator and reach agreements that both believe are fair and meet their interests.

    The process involves anywhere from 2 – 6 meetings with spouses and the mediator in which the mediator will identify issues of the divorce, give legal information about the law, and help spouses develop options and communicate about potential agreements. The discussion revolves around the spouses’ interests—what each wants and needs, and why they want and need those things. In the end, spouses reach agreements on all issues and these agreements become the divorce decree which a judge enters and finalizes.

    In mediation this process is managed specifically to avoid fighting, avoid misunderstandings, and lower conflict. This benefits spouses and their children both emotionally and financially.

    Negotiated Settlement in Litigation

    Depending on the spouses’ attorneys, negotiated settlement may happen at various points in litigation or not at all. Each attorney may submit offers, counteroffers, rejection of offers in part, or in whole, during the litigation process. Spouses interests are generally not the basis of the discussion. Rather, positions are taken and either accepted or rejected. Sometimes, spouses’ deeper interests may be taken into account, but this is not the main focus in litigated settlement talks.

    Spouses can choose, at the beginning of litigation or at any time during litigation to enter mediation to settle all issues and bring an end to litigation. Often, settlement talks in mediation are more successful than talks between attorneys.

    If you are in litigation now, ask your attorney about entering mediation to settle issues. Or, ask that all efforts be made as soon as possible to resolve the litigated case. Sadly, settlement negotiations in mediation often don’t seriously happen until after a year or more of litigation, when tens of thousands of dollars have been spent. In terms of settlement negotiations, the sooner the better.

    TRIAL

    Trial in Mediation

    There is no trial in mediation. If mediation in Arizona begins at the start of a case, there is never a time spouses will ever enter a courtroom or even go near a courthouse. The divorce process is entirely handled out of court.

    Trial in Litigation

    Trial is the final stage of litigation. At trial, each spouse argues each remaining unresolved issue to a judge. This can be in the form of testimony from each spouse, testimony from witnesses, and also documents and exhibits.

    Trials are very expensive. Depending on the complexity of a trial preparation and trial costs can range from $10,000 – well over $50,000 per spouse. A trial is also an unpleasant experience for everyone involved. Going to trial exposes both spouses to large risks. No lawyer can predict the outcome of a trial because every case is different and every judge is different and wields significant discretion. If an attorney guarantees, “I know the judge and we will win” this is likely a huge red flag.

    At the end of a trial, the Judge will decide all issues for the spouses. Typically, a trial last anywhere from one half day, to one full day. It is a small amount of time for a Judge who is relatively unfamiliar with the spouses, their children, and interests, to make decisions that will affect the rest of the spouses’ lives. However, those Judge’s decisions become the divorce orders, and spouses are bound to obey them under Arizona law. Most often, neither spouse feels like they have won—both sides feel like they have lost.

    Sometimes, a trial does not end the case. If either spouse is unhappy with the outcome of the trial, he or she may appeal the decision in a higher court. An appeal adds more time and expense to the divorce process and is very difficult and rare to win. But for some who have spent so long fighting, the fight continues on, and can for years.

    In the end, children suffer most when parents litigate, proceed to trial, and continue fighting after their divorce. High conflict between parents result in a failure to co-parent in a healthy way, which children need for their emotional development and well-being.

    Children of divorced parents who keep conflict low, avoid becoming enemies, and are able to cooperate are happier, exhibit stronger self- esteem, and have normal child development. We know from a wealth of research healthy co-parenting result in healthy children.