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What Aspects of Divorce Are Usually Mediated?



Mediation is on the rise in divorce cases. Since 2009, one mediation provider cites a more than 50-percent increase in the number of divorces settled through mediation. Many mediation participants cite benefits of saving time and money, the ability to maintain privacy of their divorce settlements, and taking less of a toll on children than divorce litigation as major motivators for use of mediation.

In most jurisdictions, a divorce requires a minimum of one year; whereas, a mediation settlement can be finalized in as little as three months. Celebrity participants involved in high-profile divorce cases, such as Tiger Woods, appreciate the privacy component of a mediated divorce. Anything the parties say during a mediation is to be kept strictly confidential as one of the fundamental rules of mediation. Parties preferring mediation often seek to avoid the unpredictable nature of trial and litigation, and the lack of control and any meaningful participation and investment in the final outcome of litigation during a bench trial when the judge is the final and exclusive arbiter.

How Divorce Mediation Works

Mediated divorce settlements involve the parties making a decision to have a mediator set up a mediation session. In that session, the couple agrees on the issues of their divorce that they will attempt to resolve out of court and through the mediation process. Often, mediation sessions that are scheduled early in a case have the highest probability of success in terms of obtaining a settlement after one to several sessions.

If the couple is unable to resolve the issues through mediation, litigation is available. Some jurisdictions require mediation as a mandatory prerequisite to obtaining a divorce and proceeding with litigation. Other states make a recommendation of mediation.

The mediator is often a lawyer, former judge, retired judge, accountant, or occasionally a health professional. It is best to make a decision on the type of mediator to select based upon the types of issues to be mediated. A mediator qualified in legal and financial fields, for instance, may offer legal, tax, and financial assistance to couples throughout the mediation, as necessary to facilitate any settlement. The mediator assists the couple in negotiating and communicating throughout the session and provides options for achieving a settlement of the issues presented.

Frequently Mediated Issues

Divorce mediation usually tackles a fairly standard grouping of issues. Most divorce mediation involves the following issues:

  • asset and property division
  • marital debt allocation
  • child support
  • child custody
  • time sharing and visitation with children
  • spousal support
  • alimony

The settlement(s) that a couple obtains through the mediation process on these issues are reduced to a written agreement. That written agreement is then signed by both parties to constitute a binding agreement.