Pennsylvania Divorce Mediation FAQ
- What is divorce mediation?
- Who are mediators?
- How can mediation help?
- How does mediation work?
- How much does mediation cost?
- Does mediation work?
- How does a mediator stay neutral and avoid taking sides?
- How do mediating spouses protect their legal rights?
- Does the mediator meet with both spouses together or separately?
- What is the difference between mediation and arbitration?
- How can a divorcing couple find a good mediator?
- Why is mediation better than going to a lawyer -- or is it?
- How long does mediation take?
- What is the difference between court-ordered mediation and private mediation?
What is divorce mediation?
Until the last 10 years or so, just about the only course for divorcing couples was to hire lawyers to do battle for them. Often the spouses would not even speak with each other, "communicating" only through their attorneys. And attorneys proliferated. The addition of "no fault" to divorce laws has given rise to an emerging alternative for divorcing couples: mediation. Mediation is the process in which the divorcing couple works out its problems, disagreements, and marital issues with a trained, impartial third party - the mediator. The mediator assists the couple in resolving its differences in a constructive way to reach a "win/win" decision rather than the adversative "win/lose" situation.
Who are mediators?
The mediator may be a marriage counselor, social worker, psychologist, or lawyer trained in family and divorce mediation. At present, mediation is still open turf for any of the above professions to claim. Maryland does not have any licensing requirements for mediators. At any rate, the mediator should have received formal training from a recognized program or institute, such as the Academy of Family Mediators. They should be versed in family budgeting, the law, tax consequences of divorce, and a variety of options and alternatives crucial to contemplating divorce.
How can mediation help?
The major differences between mediators and lawyers are that the mediator assists you and your spouse in working out your disagreements together; emphasizes the restructuring of the family from a practical point of view, in addition to the legal side; pays more attention to your emotional needs; and, is impartial, representing neither you nor your spouse, but both. Unlike the legal adversarial system, mediation is more sensitive to the integrity of the marriage. It tries to build on the strengths of the relationship, avoiding the "we'll get him/her" so common with the adversarial position.
How does mediation work?
As one mediator described the process, "Mediation is neither therapy, nor the law - it's an educational process." Usually, the couple attends an orientation session in which the mediator thoroughly explains the process of mediation such as what the couple should focus on, how they should speak to each other (keep raised voices down), and so on. The session may last for two hours.
After the initial session, the couple attends three to eight one-and-a-half- to two-hour sessions in which the mediator will guide them to make their own decisions on how they wish to end their marriage. They analyze their budgets and needs, divide marital property, review their children's needs, and reorganize their family and life-style to fit its new structure. Mediators place special emphasis on providing an acceptable form of continuity where children are concerned and may even include children in the sessions if warranted.
The process allows the parties to analyze their situations and to understand each other's needs as well as those of the children. It may alleviate the anger and bitterness that the couples initially may feel toward each other. It also makes the couple realize that although they may not be husband and wife, they are still parents. It encourages their cooperation with each other in determining their relationship with their children.
Once the couple decides on what they wish to do, the mediator draws up a memorandum of understanding that specifies what issues have been resolved. This statement is then given to the couple's respective attorneys, who will draw up a formal separation agreement based on the statement. Please note that many mediators are not lawyers and, therefore, may not consider all that should be necessary for a good separation agreement.
How much does Mediation cost?
Most mediations involve an hourly or per-session fee except for those that are ordered by a court or conducted through a community-based mediation agency. These agencies may provide mediation at no cost. The amount of time or number of sessions needed to gather information and negotiate an agreement will vary from couple to couple, so the cost of the mediation will also vary. Mediation, however, will always be much less costly than adversarial litigation.
The cost of mediation varies from $100 to as much as $250 or more per session. Attorneys who are mediators usually charge more than non-attorneys. It usually is requested that both parties contribute to the costs, eliminating any possible feelings that the one who pays may be getting preferred treatment. Sessions also may be held with co-mediators, a lawyer and a social worker, for example.
Does Mediation Work?
Statistics show that court-ordered child support and alimony payments tend to lag after two years and tend to be ignored entirely after five years. Experience so far has shown that people tend to abide by agreements reached through mediation.
How does a mediator stay neutral and avoid taking sides?
Because the mediator won't be making decisions for the divorcing couple, he or she doesn't need to decide who's right or wrong. Not only that, it is the mediator's job to help the spouses come up with an agreement that is acceptable to both parties, so the mediator makes a point of looking at the issues from both sides. Mediators who have been professionally trained have learned techniques for doing this.
How do mediating spouses protect their legal rights?
Because divorce involves legal questions, every divorcing spouse should know and understand his or her legal rights before agreeing to a settlement. Spouses who mediate are no exception. One way for a mediating spouse to do this is to work with a consulting lawyer who knows and understands mediation. Doing some independent legal research is another option. It's best to do this as early in the process as possible, then follow up with a legal review before signing the settlement agreement.
Does the mediator meet with both spouses together or separately?
Some mediators prefer to work separately with each spouse, acting as a go-between most or all of the time. Others favor joint meetings at which both spouses are present. There can be advantages and disadvantages to both approaches, depending on the circumstances of the particular couple. This is a question that divorcing spouses should address in advance with a potential mediator.
What is the difference between mediation and arbitration?
Both mediation and arbitration involve a neutral third party who is not a judge. In mediation, the neutral party -- the mediator -- helps the spouses to negotiate an agreement and has no power to make decisions. In arbitration, the neutral third party -- the arbitrator -- listens to the facts and then decides the case.
How can a divorcing couple find a good mediator?
Personal referrals are usually the best way to find any professional, including a mediator. Because mediation is a relatively new field, personal referrals may not be possible. In that case, divorcing couples may need to do a little research. Using Divorce Mediation (Nolo) includes a chapter on locating a mediator and another chapter on using the first session to evaluate the mediator.
Why is mediation better than going to a lawyer -- or is it?
Using mediation to negotiate a divorce agreement is almost always going to take less time, be less expensive, and result in a more solid agreement than using a lawyer to take the same case through the courts. For some couples, however, negotiating directly with each other, even with the help of a mediator, is not possible -- either because of problems in the relationship such as domestic violence or substance abuse, or because a spouse is unwilling to mediate. Using a lawyer, however, doesn't necessarily rule out mediation; many mediating spouses find it helpful to work with a consulting lawyer who can offer legal advice and assistance with the mediation and who can review the settlement agreement before it is signed.
How long does mediation take?
Mediation almost always takes less time than litigation. Depending on the issues, it can even take place in one day, although most divorcing couples meet for several sessions on separate days over a period of days or weeks or months.
What is the difference between court-ordered mediation and private mediation?
As its name implies, court-ordered mediation is conducted under the sponsorship of a court. It usually involves only child custody and visitation issues. Rarely are financial issues addressed in court-ordered mediation. There is often no fee charged for court-ordered mediation, whereas private mediators usually charge an hourly or per-session fee. The mediator in a court-sponsored program often makes a report to the court. Private mediation is usually confidential.
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