How to create a divorce agreement with the help of a mediator - without going to court.
Divorce mediation is a process in which divorcing spouses negotiate an acceptable divorce agreement with the help of a neutral third party -- the mediator. The mediator assists the spouses in discussing the issues involving separation and divorce and helps both spouses in their negotiations to resolve their differences. The mediator does not, however, make any decisions for the couple or decide the outcome of any disputes.Return to Top
Among the topics for mediation are:
Because the mediator won't be making decisions for the divorcing couple, he or she doesn't need to decide who's right or wrong. Not only that, it is the mediator's job to help the spouses come up with an agreement that is acceptable to both parties, so the mediator makes a point of looking at the issues from both sides. The mediator is an impartial party, professionally trained in facilitating dispute resolution techniques. The mediator's role is to facilitate discussion and help the parties reach agreements that are fair and enforceable.Return to Top
A neutral third party, called a mediator, assists both parties in clarifying issues, discussing each of their interests and needs, exploring options for solutions, and establishing a common understanding of each family member's future rights and responsibilities. At the conclusion of the mediation, the mediator writes the agreements and submits them to the court. When a judge approves the agreements, the will become legally binding court orders.Return to Top
Because divorce involves legal questions, every divorcing spouse should know and understand his or her legal rights before agreeing to a settlement. Spouses who mediate are no exception. One way for a mediating spouse to do this is to work with a consulting lawyer who knows and understands mediation. Doing some independent legal research is another option. It's best to do this as early in the process as possible, then follow up with a legal review before signing the settlement agreement.Return to Top
Some mediators prefer to work separately with each spouse, acting as a go-between most or all of the time. Others favor joint meetings at which both spouses are present. There can be advantages and disadvantages to both approaches, depending on the circumstances of the particular couple. This is a question that divorcing spouses should address in advance with a potential mediator.Return to Top
Most mediations involve an hourly or per-session fee except for those that are ordered by a court or conducted through a community-based mediation agency. These agencies may provide mediation at no cost. The amount of time or number of sessions needed to gather information and negotiate an agreement will vary from couple to couple, so the cost of the mediation will also vary. Mediation, however, will always be much less costly than adversarial litigation.Return to Top
In New Hampshire, the Family Division supports mediation and offers court-referred mediation by New Hampshire certified mediators at all Family Division locations Otherwise, personal referrals are usually the best way to find any professional, including a mediator. Because mediation is a relatively new field, personal referrals may not be possible. In that case, divorcing couples may need to do a little research. Using Divorce Mediation (Nolo) includes a chapter on locating a mediator and another chapter on using the first session to evaluate the mediator.Return to Top
Using mediation to negotiate a divorce agreement is designed to take less time, be less expensive, less stressful, less confrontational, and result in a more solid agreement than using a lawyer and litigating the same case through the courts. The New Hampshire courts find that agreements made in mediation by the parties themselves are more likely to be honored than are court orders, in which a third party has imposed decisions on them. Fewer parties reportedly return to court with post-divorce disputes when mediation is used in coming to an agreement over divorce issues than with litigation.
For some couples, however, negotiating directly with each other, even with the help of a mediator, is not possible - either because of problems in the relationship such as domestic violence or substance abuse, or because a spouse is unwilling to mediate. Using a lawyer, however, doesn't necessarily rule out mediation; many mediating spouses find it helpful to work with a consulting lawyer who can offer legal advice and assistance with the mediation and who can review the settlement agreement before it is signed.Return to Top
Mediation almost always takes less time than litigation. Depending on the issues, it can even take place in one day, although most divorcing couples meet for several sessions on separate days over a period of days or weeks or months.
The number of mediation sessions depends on various factors:
The New Hampshire Marital Mediation Board estimates the average time required for a full-case mediation is between four and twelve hours.Return to Top
As its name implies, court-ordered mediation is conducted under the sponsorship of a court. It usually involves only child custody and visitation issues. Rarely are financial issues addressed in court-ordered mediation. There is often no fee charged for court-ordered mediation, whereas private mediators usually charge an hourly or per-session fee. The mediator in a court-sponsored program often makes a report to the court. Private mediation is usually confidential.Return to Top
Both mediation and arbitration involve a neutral third party who is not a judge. In mediation, the neutral party - the mediator - helps the spouses to negotiate an agreement and has no power to make decisions. In arbitration, the neutral third party - the arbitrator - listens to the facts and then decides the case.Return to Top