Among the most popular forms of alternative dispute resolution used in modern-day divorces, mediation compels both parties to come to an agreement in an informal setting, virtually eliminating the adversarial quality of divorce litigation. While mediation is largely voluntary, many states have made it mandatory for divorce cases involving child custody disputes. The reasoning underlying this is that both parties are likely to have a continuing co-parenting relationship because they are linked by their children, and mediation helps them learn how to collaborate on sometimes tough issues.
This reasoning is central to mediation and the role of the mediator, whose primary role as a neutral third party is to spur communication between the spouses that ultimately gives rise to understanding and, hopefully, an amicable settlement. While a divorce mediator, who may or may not also be a practicing attorney, can help direct the conversation between divorcing spouses toward or away from certain issues or provide suggestions, he or she cannot make decisions on behalf of either spouse.
At the initial session, the divorce mediator will ensure that both parties sign an agreement of confidentiality and advise them on what to expect during the process. The session will proceed in accordance with the mediator’s style. The mediator may gather basic information from each person about the marriage and the main issues at stake in the divorce separately before the first session or wait until the first session begins to ask both spouses when they are in the same room together with or without their respective attorneys present. In high-conflict situations, the mediator might separate the spouses and shuttle between them until they establish enough mutual trust to begin a dialogue. Each mediator has his or her own style for attempting to foster a productive dialogue, whether it involves beginning with the most contentious issue first and then working down to the finer details or approaching the broader picture first with each party in a “private caucus” before touching emotionally charged issues.
If a settlement is reached, the mediator will then direct both parties to sign a settlement agreement, which is the main legally binding and enforceable document to come out of a mediation session. This document may be drafted by the mediator or by an attorney representing one of the parties, and a parenting plan may also be included, but some courts require a separate one to be filed. The settlement agreement then becomes part of the divorce judgment.