How Does Divorce Mediation Work? With Compromise and Cooperation.

Divorce mediation is a tool that helps Maryland couples dissolve their marriages peacefully and with respect for one another’s priorities. However, when emotions run high, it can lead you to wonder, “How does divorce mediation work?” The truth is, for mediation to work, both parties must be ready to compromise and cooperate to reach a mutually beneficial resolution. If you can do that, the settlement agreement you reach at mediation may outlast any order entered by the court.

What Happens in Divorce Mediation?

The goal of divorce mediation is simple: to provide a space and a structure to allow you and your soon-to-be-ex-spouse to work through the disputed issues in your case, and come to terms you both can agree to. Divorce mediation is an “alternate dispute resolution” process that can be used to resolve:

• Child custody and visitation
• Child support
• Alimony
• Division of property
• Temporary issues (such as the payment of household expenses pending divorce)

Your mediator will not decide your case. They are not a judge, and in fact have no authority to reach a decision without your agreement. In most cases, they act as a neutral and are not permitted to give legal or financial advice. Instead, the mediator’s job is to facilitate negotiations between parties and their attorneys. A mediator can also use his or her experience to point out potential problems, and help parties find solutions to those problems.

Mediation is confidential and protected. Your mediator is only allowed to disclose information necessary to prevent serious harm, death, or to defend themselves against mediation misconduct claims. Even the resulting settlement is confidential unless you and your spouse agree otherwise. This means you and your spouse can work through tough issues without worrying that what you say in the presence of the mediator will be used in court. In fact, your mediator cannot be subpoenaed as a witness.

Mediation can take anywhere from a few hours to several days over the course of weeks or months, depending on the complexity of the case, and the parties’ needs. However, even lengthy mediation can be less expensive than going to trial. In addition, settlements reached through mediation give the parties more control over the details of their case, which in turn keeps them from having to return to court to resolve subsequent disputes.

Will Your Divorce Go to Mediation?

You and your spouse can choose to go to divorce mediation at any time before trial. (You can also mediate any post-judgment disputes.) In some cases, Maryland family courts will order parties to attend mediation to try to resolve the case without the need for trial. All appropriate contested custody and visitation cases are sent to mediation.

However, in cases of domestic violence or child abuse, or when there is a substantial power difference between parties, mediation may not be appropriate - a party with less bargaining power could feel pressured to agree to things that are not in their best interest. Maryland court rules prevent courts from ordering cases that involve a “genuine issue of abuse” to attend mediation.

While the court can order parties to attend mediation, it can’t order parties to settle. If you and your spouse are unable to agree or resolve your issues in mediation, you can still have the matter decided by the Court.

Divorce Mediation Process

The specific process used for your divorce mediation will vary depending on your court, the issues, in your case, and your mediator. However, most mediations involve common steps.

Preparing for Mediation

The success of any divorce mediation depends on meaningful preparation by both parties. Often, when mediation needs to be adjourned or rescheduled it is because parties don’t have enough information to resolve their case. That’s why you and your divorce attorney (if you have one) should do the work to investigate your case and establish what the issues are before sitting down with the mediator.

The most successful mediations begin with each party having a clear understanding of:

• The location and value of both parties’ assets
• The amounts of any debts (and whose name they are held in)
• Their priorities among the various issues
• Both parties’ work schedules (or how and when they are determined)
• The children’s school schedules, extracurricular activities, and other recurring events
• Reasonable household budgets after separation
• Employment, income, and compensation information
• Information on the availability of health, dental, and vision insurance
• Transportation time and costs for parenting exchanges

When divorce mediation happens within the context of litigation, this information is often gained through “discovery” – the formal exchange of documents and information that allows each party to develop his or her case. However, if you and your spouse are engaging in early divorce mediation, including before you separate, you will still want to gather information ahead of time to make the most efficient use of your time with the mediator.

Many mediators ask each party to present a mediation summary describing the outstanding issues and proposed solutions in the days leading up to mediation. This is your opportunity to lay out your understanding of the financial and practical aspects of the divorce, and to propose a solution based on your priorities. You should not expect to agree with everything your spouse writes in their mediation summary. If you did, you wouldn’t need to go to mediation. Remember that this is a starting point. Your mediator will use these summaries to understand the key issues in the case, and evaluate how far apart the parties are, and how best to move them closer together.

During Mediation

You and your spouse will be asked to be present at a specific time and place, often the mediator’s office. Modern divorce mediation sometimes happens electronically using video conferencing software. If you will be participating remotely, be certain you are in a place where you won’t be interrupted, have a reliable internet connection, and have water, tissues, and paper and pen available to you. Unless you and your spouse have agreed otherwise, you should not have anyone else present during your mediation. Exceptions to this may include:

• Translator or interpreter
• Financial planner or accountant
• Divorce coach or therapist

Each of these professionals can help you to better communicate with each other and with the mediator, or understand the practical impact of proposed solutions. However, you should never surprise your spouse with a third party’s presence. If you need a ride to mediation, ask your support person to remain outside the building, or return later to pick you up.

During divorce mediation, your mediator will steer and facilitate conversation between the parties focusing on the issues you each identified as top priorities. They can do this in a variety of ways:

• Holding one-on-one meetings with each party
• “Shuttling” between parties who are both present, but in separate rooms
• Hosting joint sessions with everyone present
• Pausing or rescheduling mediation so the parties can investigate options, consider proposals, or release emotional tension

Mediation can take as long, or as short, as the parties need it to. You should feel comfortable asking for a break. Remember that external factors like hunger can make it hard to think clearly and moderate your emotions. If you find you need to use the restroom or get a snack, or if you are feeling overwhelmed with emotion for any reason, tell the mediator so they can find an appropriate time to pause. Then you can reconvene with a clear head.

Preparing the Settlement Agreement

Mediation ends in one of two ways:

• Parties agree that further mediation will not help, and they return to court for litigation
• Parties reach an agreement and the mediator or their attorneys prepare a settlement agreement

Remember that you can come to a partial settlement, resolving some issues while leaving others up to the court. This is often highly effective in cases that involve unique legal issues, or where additional fact-finding is needed before a specific issue can be resolved (such as establishing the value of a piece of property or business interest).

If you were ordered to attend mediation and were unable to resolve your case, the mediator may prepare a report stating only that you attended and that further mediation is not recommended, which you or your attorney can file with the court.

However, if you do resolve some or all of your disputes, the mediator will prepare a written settlement agreement for both parties to sign. This is a binding legal contract that can only be set aside by the Maryland family court. You are not allowed to simply change your mind after signing the mediation agreement. Be sure to read everything carefully and ask any questions you may have about the language. The time to work out the details of your agreement is while you are still in mediation. Don’t be afraid to ask for clarification.

What Happens After Mediation in Divorce?

A mediator cannot finalize your divorce. When mediation is complete, your case must go before a judge for the entry of a Judgment of Absolute Divorce. You or your divorce attorney can use your mediation agreement to prepare that judgment, including all its terms or simply refer to the document you and your spouse signed. Then, you can ask the court to sign a judgment formally ending your marriage and adopting the settlement you and your spouse reached together through mediation.

On the other hand, if you did not settle everything in mediation, the court will schedule the remaining issues in your case for trial. You can use a partial settlement to limit the issues presented at trial, which will make litigation faster and less expensive. However, anything not resolved with the help of the mediator will be up to the judge to decide. This means you and your spouse will have less control over that aspect of the case, and you will need to accept whatever the judge decides.

What Can You Do to Make Mediation Successful?

Given the time, expense, and loss of control that comes with litigation, many attorneys and divorcing couples believe that mediation is a better way to end a marriage. However, as you can see, a successful mediation depends on both parties’ ability to cooperate and compromise. That can be hard when emotions run high. However, there are some things you can do to make the process easier and improve your chances of success:

• Work with a therapist or counselor to address your emotional needs outside mediation
• Stay open-minded and willing to consider other options
• Think of your spouse as a business partner to accomplish your goals
• Focus on objective aspects of your case, rather than telling your story
• Be practical with proposed solutions
• If something seems unreasonable, ask questions
• Take breaks
• Listen to your attorney, the mediator, and your spouse
• Know what is most important to you, and where you can be flexible
• For custody, visitation, and child support issues, put your children’s needs first

Divorce mediation offers a low-conflict way for couples to resolve their marriages and create a plan for the future of their family and their children. It can help you avoid the time, expense, and emotional labor of litigation, and give you more control over the outcome of your case. A trained mediator can guide you through custody, property, and financial issues in your divorce mediation to help each side protect his or her priorities and find common ground. All of the attorneys at the Law Office of Shelly M. Ingram, LLC are also trained mediators. Shelly has been a family law mediator since 2005, and has worked with numerous couples in Howard County and across Maryland to explore their options and communicate their needs in an honest and respectful manner. Call (301) 658-7354 or contact us online to schedule a mediation or to speak with one of our attorneys about how to prepare for mediation.