If you are thinking about divorce, you may be anticipating a long, drawn-out court process, and possibly a trial. The good news is, that the vast majority of divorces settle before trial. Trials are expensive, and most couples can find a way to resolve the issues in their divorce through other means.
How you and your spouse seek resolution will have an impact on not only the outcome of your case, but your experience of the divorce process. Divorce is never pleasant, but it doesn’t have to be hostile. Mediation is one way you can settle your divorce while keeping tensions to a minimum. This blog post will talk about what divorce mediation is, what it’s not, and why mediation might be the best divorce option for you.
Mediation may be ordered by a court, but you and your spouse can also choose to work with a divorce mediator on your own, perhaps even before one of you files for divorce. Here’s how the process works.
First, you will choose a Minnesota divorce mediator to work with. If you and your spouse each have attorneys, your attorneys can recommend a good mediator. A divorce mediator is usually an attorney, but not always. It is helpful to work with a mediator who understands family law.
What exactly is a mediator? The mediator is not a judge; she won’t tell you what to do. She may be an attorney, but she is not your attorney—or your spouse’s. She’s not there to take sides. The mediator is a neutral party who helps create a framework within which you and your spouse can identify the issues in your divorce and weigh potential solutions to the problems they pose. These issues typically fall into three categories: division of property, custody and parenting, and financial support.
If divorce were a road trip, the mediator would not be the GPS telling you where to turn and when. Instead, she’s more like the guardrails keeping you on the road so you can get to your destination in the way that works best for you.
During the divorce mediation process, you and your spouse schedule as many sessions with the mediator as you need. The mediator will create a plan and an agenda for each session, and will advise you what information you and your spouse need to exchange with each other in advance in order to be able to address the issues on the table in the session. Your attorneys may be present for your mediation sessions if you want them there, but they need not be. If there is a concern about power discrepancies then it may be best to have your attorney present to make sure your issues are fully addressed.
The mediator will facilitate your discussion of the issues, helping you focus on your interests (“I want to be involved in my kids’ day-to-day lives”) rather than positions (“I must have at least 50% custody!”)
Focusing on interests makes it more possible to identify multiple possible resolutions, and more likely that you and your spouse will be able to reach a “win-win” agreement.
When you and your spouse have resolved all issues in your divorce, she will prepare a Memorandum of Agreement. This is not a binding order, but your attorney will use it to draft the divorce decree that the judge in your case will sign. At that point, your agreement will become legally binding on you and your now ex-spouse.
If you would prefer to resolve most of the issues of your divorce outside of court, mediation may be the best divorce option for you. Consider some of the advantages of the Minnesota divorce mediation process.
First and foremost, mediation promotes better communication between you and your spouse. That will be important if you need to be in contact with each other after the divorce to act as co-parents. Better communication means less hostility; less hostility means less fighting, which translates into less stress for you and especially your children. And while mediation can keep an amicable divorce amicable, even couples who are not getting along can use the process successfully, since it tends not to escalate tensions.
Divorce mediation also proceeds on your timetable, not a court’s. While some couples decide to mediate after filing for divorce, many do it beforehand. Before the legal process even starts, you could have your agreement in hand, minimizing the need for court involvement before your divorce is final.
Many people especially like the fact that mediation allows them to come up with creative solutions to issues in their divorce that a judge might not have identified or ordered. A judge may be an expert on the law, but you and your spouse are the experts on your family. And when you and your spouse have been involved in creating the terms of your divorce, you are much more likely to be satisfied with them and to abide by them. That means it’s less likely that you will have to drag each other back into court to enforce those terms.
Because you and your spouse spend less time in court in a mediated divorce, and willingly exchange financial and other documents, your attorney spends less time preparing for or sitting in court and chasing down papers. That means that you are likely to pay less in attorney fees. Yes, you will have to pay the mediator for her time, but that expense is usually split by you and your spouse and is typically offset by the lower fees you pay your own attorneys.
Mediation may also be a good option for you if privacy is important to you. While court filings are public record in a divorce, a mediator’s notes of your session are not.
Divorce mediation is not right for everyone. If there is a serious power imbalance in the marriage, a history of domestic abuse, or some other reason that the spouses cannot negotiate fairly, litigation or another divorce process might be preferable.
To learn if divorce mediation is the best divorce option for you, we invite you to contact Mundahl Law to schedule a consultation.