Divorce: Protecting Your Rights During Mediation

In general, divorce mediation will help you resolve your issues with your spouse so that you can then file for an uncontested divorce. The process seeks to turn what is typically a confrontational process into a “win-win” situation. The core principle of mediation is self-determination.

Should I Choose Mediation or a Traditional Court Divorce?

In certain situations, mediation is not recommended, and it’s best to proceed with a traditional court divorce. These include:

• When there has been a history of domestic violence
• When one or both spouses are secretive about finances and assets
• When there is a high level of animosity between spouses

The following situations may benefit from mediation:

• Where your children’s well-being is of primary importance
• When you are considering joint or shared custody
• When you want the process to be as civil and fair as possible
• When it’s important to keep costs down
• When you want some privacy around the issues and/or outcomes.

What Are the Steps in Mediation?

Mediation typically involves five steps:

• Introduction: The mediator explains the process and procedures, and then each party gives their version of the story to the mediator.
• Information gathering: Each party provides information regarding assets, financial records, and other relevant information.
• The negotiation: The parties express to the mediator what they would consider to be a fair settlement, and then the couple and the mediator work to come to a resolution of the issues.
• Drafting the agreement: Everything that the parties agreed to verbally gets put in writing.
• Signing and filing the agreement:  When signed, the agreement will be filed with the court as an uncontested divorce agreement.

How Does Mediation Protect Me and My Rights?

In nearly all cases, you can better protect yourself and your rights if you choose mediation. When you proceed with the traditional, contested divorce route, you’re subject to the court’s Rules of Evidence, which may include or exclude evidence important to your case. You’re also subject to the potential biases of the judge. Judges only have a limited number of options available, and his or her rulings lack the kind of flexibility you have when you and your spouse develop the framework for your divorce.

Mediation protects you and your rights in the following ways:

First, the mediator is trained to help you understand the various options available to you regarding custody, visitation, financial arrangements, college expenses, health insurance and other issues. Often, the mediator will offer solutions that you or your spouse haven’t thought of. In most cases, this collaborative way of making decisions leads to a better outcome than one decided by a judge.

Second, mediation protects your money because it is much less expensive than litigation. On average, couples spend $20,000 for a court-supervised divorce. Mediation can cost several thousand dollars or less if you’re a couple that should be pursuing mediation.

Third, mediation protects your time. While the exact amount of time it takes to come to a resolution in mediation will depend on such factors as the complexity of the issues and how well you and your spouse communicate. In nearly all instances, it will be much less time-consuming than a divorce case that goes before a judge. On average, contested divorces take approximately 18 months. Uncontested divorces are resolved in a shorter period of time but typically take at least several months. However, mediation can be completed in a matter of several weeks.

Fourth, if you can’t reach an agreement, you can walk away from the mediation negotiations. Agreements reached in mediation are only finalized when both parties are satisfied with the result. While a court can order parties to mediate, it cannot order them to sign an agreement. That’s not the case with a court ruling, where you will be bound by the judge’s findings, even if they do not fully suit your situation.

Fifth, mediation is confidential. The details of your marriage, marital disagreements, financial information and other matters that you consider private will not be shared. By contrast, it is difficult to protect as confidential most information that comes before the court in a divorce proceeding.

Other Facts You Should Know About Mediation

Divorce is always difficult. Most people assume when they marry that they’ll be together for the rest of their lives. Sadly, that’s often not the case. If you or your spouse has decided to file for divorce, one of your first steps will be to decide whether the divorce should be mediated. A seasoned Bethesda divorce attorney can help you with this decision.

Mediation is a confidential process where the parties work with a neutral third party to reach an agreement regarding custody of children, division of property, financial arrangements such as spousal support and child support payments, and similar issues. Divorce mediators are not always lawyers, though many of them are. You don’t need a lawyer to participate in mediation, though many people do involve their attorney.

The mediator does not represent either party but is bound to help the divorcing parties think about fair and reasonable resolutions to the issues raised by the divorce. In Maryland, all cases involving contested custody or visitation of minor children are ordered to engage in mandatory mediation.

If you come to an agreement on issues involving child custody or visitation, the mediator will draw up a Parenting Plan that includes the terms of your agreement. If you and your spouse agree on other issues such as alimony, a financial settlement relating to assets or retirement investments, health insurance, and related issues, the mediator will draft a document that includes the parties’ understanding of that agreement as well (known as a Memorandum of Understanding). You should be aware that it is unethical for a divorce mediator to draft a separation agreement for the parties.

Get the Help You Need Today from a Bethesda Divorce Attorney

Going through a divorce is difficult under the best of circumstances. We can make the process of a divorce or divorce mediation more constructive, with less stress and fewer negative consequences. Brandon Bernstein, a Bethesda divorce attorney, has been recognized as a Rising Star in Maryland and a Maryland Super Lawyer. Contact us online or call us at 240-395-1418 for immediate assistance.