Last Updated on July 25, 2023 by Turner Thornton
Nearly half of marriages end in divorce, and not all are adversarial or contentious. When possible, it is better for everyone involved to avoid heated arguments and constant fighting – especially when children are involved. While it is impossible to avoid a courtroom battle in some divorces, there are other cases where a couple might be able to work together to reach an amicable conclusion. Today more than ever before, couples consider mediation in divorce rather than litigation.
What is Divorce Mediation?
Mediation is a process that allows divorcing spouses to work through problems together, including how child custody will operate and how property will be divided. Mediation is confidential, and a positive way to settle any conflicts outside of the courtroom. A mediator is a neutral third party who helps couples resolve issues in a way that is more cost-effective than litigation. Mediation also helps couples end their marriage in a way that is more amicable, which is best when children are involved.
Some of the issues that can be resolved through mediation include:
- Child custody and visitation
- Child support and maintenance
- Property distribution (assets and liabilities)
- Taxes and Internal Revenue Service issues
Mediation typically takes place in an informal setting, where spouses are more at ease as they work with the mediator to reach an agreement on various issues.
The Role of The Mediator
While it is not always the case, a mediator may be an attorney. Regardless, a mediator remains neutral and does not provide legal advice or counsel to either party during the mediation process. The job of the mediator is to help spouses reach an agreement regarding property division, child custody and visitation, parenting time, and other issues in a way that is acceptable to both parties. Mediation encourages the resolution of disputes in a way that is positive, rather than contentious. According to the Civil Practice and Remedies Code Chapter 154, the mediator’s role involves helping spouses:
- Identify key issues
- Understand and establish priorities
- Reduce misunderstandings and find points they agree on
- Find a resolution to issues that address each party’s needs and interests based on goals, values, and priorities
It is important to note that no decisions are made by the mediator, and spouses are not forced to agree on the issues. A mediator’s role is simply to examine the points of view of both parties so that areas they may agree on can be identified.
Who Should Consider Mediation in Divorce?
There are circumstances in which spouses should consider litigation, rather than mediation in divorce, including cases involving violence, overwhelming animosity, or one spouse’s refusal to discuss the issues with a neutral third party. However, there are large majority of situations in which mediation should be considered. These include:
- A spouse cannot spend a significant amount of money on lawyer’s fees and court costs
- Spouses put their children’s mental and emotional health and well-being first and foremost
- One or both parties desire to keep the divorce process as civil and amicable as possible
- For parents with children, shared or joint custody is being considered
- One or both spouses prefer to avoid the winner/loser mentality litigation sometimes brings about and protect their dignity as much as possible during what can be a very stressful and emotional time
There are many situations in which spouses may want to consider mediation; every divorce is different, each with its own set of circumstances.
What Happens in the Mediation Process?
Generally speaking, the petitioner and respondent are placed in two different rooms after arriving (sometimes with their attorneys) at the mediator’s center or office. The mediator begins the process with the petitioner and is focused on learning about the details of the case along with any issues that may be making it difficult for both spouses to agree in key areas.
Once the mediator feels satisfied they know all the particulars of the case, they will move on to the respondent and do the same. The goal is to determine which issues are preventing the parties from being able to settle their differences.
Frequently, one spouse or the other comes into mediation determined not to budge from their position on the issues; a skilled mediator is often able to gently sway parties so they can come closer together in terms of the important issues involved in divorce.
During the mediation process, the mediator goes back and forth between the petitioner and respondent’s rooms until the point a settlement can be negotiated, or until it is determined it is not possible. There are also cases where both parties are completely amicable where the mediator will stay in the same room in order to come to an agreement regarding important matters in the divorce.
Why Mediation in Divorce May Be the Best Option
Unlike divorce litigation which is held in a public courtroom, mediation is completely private and confidential. In the event a couple must go through litigation after mediation fails to produce results, the mediation is never brought up and the mediator cannot be called to testify. Mediation is ideal in terms of couples with children, as it helps parents work together to protect the best interests of their children. When trying to settle disputes in a divorce, litigation often promotes more friction or conflict than already existed. For many couples who are divorcing, mediation is a way to end things in a more peaceful, friendlier manner.
Consult with Varghese Summersett Family Law Group
When couples marry, they aren’t expecting to divorce. However, it happens in nearly half of marriages today. Mediation in divorce is not the solution in every case, but it can be in many – especially in divorces in which spouses agree on most of the issues. Mediation is less costly and can help both parties move forward in a more positive way with less animosity. Regardless of whether you want to learn more about mediation or litigation, Varghese Summersett Family Law Group can help. Contact us today at (817) 900-3220.