Divorce Mediation: Keep Decision-Making Power In Your Hands
Divorce is one of the most difficult experiences many people will endure in their lives. Going through the divorce process can bring up a wide range of negative emotions, including grief and anger. The nature of a divorce proceeding makes many of these emotions inevitable, but the process itself does not have to be combative. You and your spouse might both want to avoid conflict by trying to work out a settlement agreement instead of fighting it out in court. Missouri law allows the parties to a dispute to use various methods of alternative dispute resolution (ADR) prior to, or instead of, taking the case to trial. Mediation is a common form of ADR in family law disputes. It offers many advantages over divorce litigation when spouses are willing and able to work together to settle their disputes. A divorce mediation attorney can help you understand the process and decide whether it might work in your divorce.
What Is Divorce Mediation?
The Rules of the Missouri Supreme Court define mediation as a process involving a “neutral mediator” who “assists the parties in reaching a mutually acceptable agreement as to contested issues in” a divorce or other family law dispute. The mediator’s job is to help the parties come to an agreement, not to give them advice or try to steer them in any particular direction. If the parties are able to reach an agreement, it must “be based on the decisions of the parties and not the decisions of the mediator.”
In order to serve as a mediator in Missouri family law cases, an individual must be a licensed attorney or have a graduate degree in a field like “psychiatry, psychology, social work, [or] counseling.” They must complete twenty hours of training that covers family law and “violence and power imbalance issues.”
What Are the Advantages of Mediation in a Divorce Case?
If the parties to a divorce are willing to try to work out a settlement, mediation can offer many advantages over litigation.
Control Over the Process
The parties have much more control over their own divorce in mediation. They have the final say over whether or not to settle their disputes. The timing of the mediation depends on their schedules and the mediator’s availability, not the court’s docket.
Partial Resolution of the Dispute
The goal of divorce mediation is ideally to resolve all of the issues in dispute. Sometimes, spouses are only able to agree on some issues. They might be able to reach an agreement on property division, for example, but not child custody or child support. In that situation, they can sign a settlement agreement regarding property division and continue litigating the other issues.
Almost everything that occurs in a courtroom becomes part of the public record. Mediation provides a way to work through family law disputes in private. Everything that the parties say or do during a mediation session is confidential under Missouri law. No statements made during those times are admissible as evidence in court. Neither party may call the mediator, nor anyone employed by the mediator, as a witness.
Is Mediation Required in Missouri Divorces?
Mediation works best when both parties agree to it. A court can also order the parties to a divorce to attempt mediation and appoint a qualified mediator. The parties must try mediation for a minimum of two hours. After that, they can terminate the mediation.
A mediator can terminate a court-ordered mediation if they believe that:
- Continuing the process would be harmful or prejudicial to either party or their children; or
- One or both parties are so unable or unwilling to participate that an agreement is all but impossible.
How Can I Prepare for Divorce Mediation?
An experienced divorce mediation lawyer can help you get ready for mediation. Some important steps you can take to prepare may include:
- Identify your goals: Are there specific issues that are particularly important to you? What would an ideal settlement agreement look like to you? Make a list of outcomes that you would like to see.
- Identify your limits: Where are you not willing or able to compromise? Knowing your limits is just as important as knowing your goals.
- Gather paperwork and other evidence: The more information you can give to the mediator, the better able they will be to help you find common ground with your spouse.
- Keep an open mind: Remember that the goal of mediation is to settle the dispute, not to “win.” The mediator is there to identify areas where the two of you could be capable of compromise and agreement.
What Happens During Mediation?
Mediation is much less formal than courtroom proceedings. Each mediator has their own way of running mediations. A typical mediation has the following components:
- Opening statement by the mediator: The mediator introduces themselves and explains how the process will work.
- Opening statements by the parties: Each party or their attorney may give a brief statement explaining the issues at stake and describing the kind of outcome they would like to see.
- Group discussion: The mediator could try to facilitate a discussion with everybody at the same table. This might not work, depending on the amount of discord between the parties.
- Separate caucuses: After — or instead of — the group discussion, the mediator may have the parties go to separate rooms. The mediator will go back and forth between the rooms to hold private meetings with each party and deliver compromise offers. This part often comprises the bulk of the mediation process.
- Closure: During the separate caucus stage, the mediator is keeping track of where the parties have reached agreements on important issues. They will prepare a written statement of the parties' agreements and ask each of them to sign it. The parties may then incorporate the agreement into a court order.
Is Mediation Binding?
You are under no obligation to agree to anything in mediation. Even if the court ordered mediation, that only means that you have to try to reach a settlement for two hours. If you successfully reach a settlement agreement during mediation, however, and sign the statement prepared by the mediator, that agreement will be binding on you in most cases.
Family attorney Mark A. Wortman has dedicated 100% of his Kansas City law practice to representing people in divorce cases, child custody disputes, and other family law matters. He can advocate for your rights and interests both in and out of the courtroom. Please contact the firm today online or at (816) 523-6100 to schedule a confidential consultation to discuss your case.