Divorce Mediation:
How It Works and Why It May Be Right for Your Family
Divorce mediation is a process in which a neutral third party, called a mediator, helps divorcing couples reach an agreement on some or all of the issues between them. The process can resolve the divorce case without requiring the parties to go to court, and often results in a resolution and those resolutions are more amicable, cost-effective, and longer lasting.
As a quick overview, the key aspects of divorce mediation include:
• Court-Ordered or Voluntary Participation: In many jurisdictions, attempting mediation is required before a divorce court will hold a final hearing. If not, mediation may be selected voluntarily, meaning both parties can agree to participate in mediation.
• Neutral Mediator: The mediator is neutral and is ethically obligated not to take side. While the mediator is typically an attorney, the mediator does not represent either party and cannot give either party legal advice. The mediator’s role is to facilitate communication, help identify issues, problem-solve possible solutions, and assist the parties in reaching an agreed resolution.
• Confidentiality: As a general rule, mediation is a confidential process. This means that in the majority of states, discussions in mediation are not disclosed in court. For this reason, divorce mediation is also far more private than a divorce trial.
• Focus on Creativity and Cooperation: The goal of mediation is to work creatively, and sometimes even cooperatively, to resolve issues such as division of property and spousal support (alimony/maintenance). For mediation in divorces of parties with children, child custody, child support, and parenting time are also addressed. The mediator helps the parties explore various options and practical solutions, and encourages compromise.
• Control Over Outcome: Unlike in a court decision, where the judge imposes a ruling on all issues, the parties in mediation have control over the final agreement. This can lead to solutions that better meet the needs of both parties and their children. At mediation, the parties can make the agreement as detailed and specific as they want in an effort to avoid future misunderstandings or disagreements. Rulings from judges are often more general and broad-sweeping. Also, proceeding to trial is risky, as there is never a guarantee that the judge will rule in your favor.
• Cost and Time Efficiency: Mediation is generally less expensive and faster than litigation. It reduces the need for extensive court appearances and legal fees. In a litigated case, if a party receives an order they feel is improper, they have a right to appeal that order. Appeals can be extremely costly and can take a long time to conclude. A mediated agreement is far less likely to be appealed than a litigated final divorce order.
• A Less Adversarial Process: Mediation aims to reduce conflict and promote a cooperative approach to resolving disputes. This can be especially beneficial in cases involving children, as it can foster a more amicable co-parenting relationship post-divorce.
• Mediation Includes Attorneys: Divorce attorneys attend mediation with their clients and guide them through the mediation process. As the mediator does not represent either party, the divorce attorney remains the client’s advisor and advocate. The attorney evaluates settlement proposals and prepares the necessary documents protecting their clients’ rights and needs throughout the process.
How mediation works, and what to expect from the process:
3. When choosing a mediator, here are some important things to consider: a. Their experience in mediating cases similar to yours; b. Their reputation and whether they are recommended by others in situations similar to yours; c. Their ability to foster solutions adapted to the specific needs of your case; d. Whether their personality and communication style aligns with yours; e. Whether their schedule availability aligns with the desired timeline of your case; and f. Whether their fees are affordable for you.
4. After a mediator is selected, the mediation date(s) must be scheduled. The parties, their attorneys, and the mediator will all coordinate schedules to select a date on which all individuals are available. Once the date is selected, the mediator will provide a mediation agreement which will include the details regarding when and where mediation will be held, as well as the mediator’s fee arrangements. The fees of mediation are most often divided equally between the parties, but sometimes they are divided in accordance with the parties’ income percentages, or paid entirely by one party. Be sure to read this agreement carefully before signing and right before attending mediation to ensure you understand your obligations.
5. Traditionally, mediation occurs at the office of a party’s attorney, or at the mediator’s office. Since the COVID-19 pandemic, many mediators now also offer virtual mediations which can be completed entirely online. Virtual mediations can be particularly helpful in cases where there is a considerable distance between the parties’ locations, or where the parties’ relationship is particularly contentious.
6. The length of the mediation will depend on many factors, including the complexity of the legal issues involved, the number of contested issues to resolve, and the level of cooperation between the parties. Most mediations can be completed in one full-day session. Some mediations can even be completed in just a few hours. Other more complicated cases will require several days of mediation sessions.
7. Each mediator’s approach is different. In general, mediation will involve the mediator talking with each side about their position, including the arguments they intend to present to the court and any settlement proposals. The mediator will identify where the parties disagree, and assist the parties in reaching a resolution by exploring the options available to each party, proposing practical and creative solutions, and encouraging compromise.
8. Just because the parties participate in mediation does not mean they are required to reach an agreement on all issues; the outcome of mediation could be a partial agreement if the situation warrants it, or no agreement at all. In other words, each party must negotiate in good faith, but neither party can be forced into an agreement.
9. If an agreement is reached, a written agreement is prepared. The written agreement will be signed by both parties, and typically their attorneys. This is typically completed before mediation is concluded, not after. The signed agreement is then filed with the court to be approved by the judge and entered as a court order.
10. Even if a complete settlement is not reached, mediation is still a valuable tool. In some cases, parties will reach an agreement resolving some, but not all, of the issues in their divorce. For example, the agreement could resolve all financial issues but not child-related issues, or vice versa. The issues that were not settled by agreement will typically proceed to trial to be decided by the judge, but could also be addressed at a later mediation between the parties after further discovery is completed.
If no issues are resolved by agreement, mediation is still an opportunity to gain insight into the other party’s arguments and strategies. This can be helpful in preparing for trial, or returning to mediation in the future. Sometimes, parties continue to talk about proposals presented at mediation and end up reaching an agreement at some point before trial.
IS mediation right for you?
Divorce mediation provides a viable alternative to traditional litigation. In most cases, divorce mediation focuses on cooperation and mutually beneficial solutions, offering a more amicable way to conclude a marriage. Even if the mediation is court-ordered and does not feel cooperative, statistically a divorce mediation most often results in a final resolution and does so far more efficiently than a litigated divorce trial.
While mediation is often beneficial in divorces, it is not appropriate in all cases. For example, if there is a history of domestic violence or abuse between the parties, mediation is generally inappropriate. You should discuss the specifics of your case with your attorney to determine whether mediation is a safe and appropriate option for you.
Tips for a successful mediation:
• Determine whether there are any documents or pieces of information that you will need from the other party before you feel comfortable entering into an agreement, and work with your attorney to obtain them well before your scheduled mediation date.
• Identify the issues that are most important and least important to you and number them in accordance with their priority. Do the same thing based on your knowledge of the other party’s position. This will help organize the discussions to prioritize reaching agreements on what matters most to you, and also identify potential offers to compromise.
• Have a logical reason and legal basis for each item in any settlement proposal you offer. All offers should be formed by considering what outcomes would be possible at trial. Making offers that are unreasonable or unfair are counterproductive and do not encourage the other party to compromise.
• Come prepared to listen to the other party’s offers and provide meaningful responses and reasonable counterproposals which address any concerns raised.
Do not expect that you will walk away from mediation with an agreement that awards you everything you wanted. A successful mediation will almost certainly require each party to make some compromises.
• Avoid involving non-parties in the mediation. While you may want a close friend or family member with you to give input on whether to reach an agreement, they will most likely be prevented from participating by the mediator. Involvement of non-parties presents confidentiality concerns and typically distracts from the negotiation process.
• Focus on the future and your goals for the outcome of the case. It is not constructive to bring up past wrongdoings of the opposing party. Your time (and money) is better spent discussing solutions for moving forward.
If you are considering pursuing divorce mediation, it is important to understand your rights and responsibilities. At Brown Carrington, PLLC, we care.
Contact us today to schedule a consultation with one of our skilled attorneys to discuss the details of your case and determine your best strategy for mediation.
Written by: Ryan Cassman
Ryan Cassman is a Partner at Brown Carrington, PLLC, and a Certified Family Law Specialist, Mediator, and Parenting Coordinator with over 20 years of experience. Recognized as an Indiana Super Lawyer every year since 2009, Ryan is known for his balanced approach combining skillful negotiation with strong courtroom advocacy. He’s dedicated to helping families navigate complex legal issues with clarity, compassion, and practical solutions.
Learn more about Ryan here.
Written by: Samantha Huettner
Samantha A. Huettner is a Partner at Brown Carrington, PLLC, where she helps individuals and families navigate the complexities of family law with clarity and confidence. Drawing on her extensive background in civil and commercial litigation, Samantha brings a strategic and practical approach to every case. She’s also the co-author of Divorce and Coparenting: A Support Guide for the Modern Family (American Psychiatric Association) and has been featured in Forbes and Fortune Magazine.
Learn more about Samantha here.
Written by: Catherine Pierce
Catherine is a dedicated family law attorney specializing in divorce, child custody, adoption, and domestic violence matters. She earned her J.D. from the University of Louisville and has gained extensive experience through roles as a public defender and internships focused on family and child welfare issues. Catherine is known for her thorough legal research, strong advocacy skills, and commitment to guiding clients through complex family law matters with clarity, strategy, and professionalism.
Learn more about Catherine here.
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