Family and Divorce Mediation Process

Family and divorce mediation is a process in which a mediator, an impartial third party, helps solve family disputes by encouraging the participants’ voluntary agreement. The family mediator assists communication, encourages understanding and focuses the participants on their individual and common interests. The family mediator works with the participants to explore options, make decisions and reach their own agreement.

Family mediation is not a substitute for the need for family members to obtain independent legal advice or counseling or therapy. Nor is it appropriate for all families. However, family mediation is a valuable option for many families because it can:

  • increase the self-determination of participants and their ability to communicate
  • promote the best interests of children
  • reduce the economic and emotional costs associated with the resolution of family disputes

Effective mediation requires that the family mediator be:

  • qualified by training, experience and temperament and possess inter-personal skills
  • impartial and able to assist the participants in reaching their decisions voluntarily
  • able to secure pertinent information from the participants so that they can make informed decisions
  • aware of the impact of culture and diversity
  • aware of the developmental stages of children and take into account the best interests of children
  • able to identify families whose history includes domestic abuse
  • available when needed

Family cases are especially well suited for mediation because the issues are particularly personal and emotional. The fact that mediation gives people the opportunity to be heard and to listen to the perspective of the other party means that couples are often able to work out their differences in productive and collaborative ways that minimize disruption to their lives and, where there are children, to their children’s lives.

Pre-Mediation Contract: At the initial session, the mediator and the participants will discuss the mediation process and whether it is appropriate in the instant case; the participants who will be present during the process; the format of the process; and the projected duration and costs of the process.

Then the participants and the mediator will enter into an Agreement to Mediate that confirms the participants' understanding and commitment to the process, the mediator’s role, the requirement for full financial disclosure, the confidentiality of the process, the costs, and the right of any participant to terminate the process at any time up to the signing of a Memorandum of Agreement.

Six Stages of the Mediation Process

  1. Introductory Remarks/Opening Statement
  2. Statement of the Problem by the Parties
  3. Information Gathering Stage
  4. Identification of the Problem
  5. Bargaining and Generating Options
  6. Reaching an Agreement

1) Introductory Remarks/Opening Statement: The mediator outlines the roles of the participants and demonstrates the mediator’s neutrality. The mediator will also review the mediation process and briefly recap the issues and the areas to be addressed. The opening statement during the introductory remarks will set out the ground rules (e.g., parties should not interrupt each other) to help the mediation move along smoothly. If attorneys are present, they can confer with their clients but the parties should speak for themselves.

2) Statement of the Problem by the Parties: After the opening statement, the mediator will give each side the opportunity to tell their story uninterrupted. The statement is not necessarily a recital of facts, but it is designed to give the parties an opportunity to frame issues in their own mind and to give the mediator more information on the emotional state of each party.

3) Information Gathering Stage: The mediator will ask the parties open-ended questions to get to the emotional undercurrents. The mediator may repeat back key ideas to the parties and will summarize to may sure all parties possess the same understanding of what is being said. This helps the mediator to build rapport between the parties and make sure everyone is on the same page.

4) Identification of the Problem: The mediator tries to find common goals between the parties and helps to focus the parties on identifying the real issues and ways to address the same.

5) Bargaining and Generating Options: Once the parties have adequately identified the issues that need to be addressed in mediation, the mediator will propose a brainstorming session to explore potential solutions. The mediator may decide to hold private sessions with each party in order to move the negotiations along. These “caucus sessions” will be confidential. The caucus provides a safe environment in which to brainstorm and surface underlying fears. The goal of the session is to find some common ground by exploring lots of options and to bring about possible solutions for the parties to think about.

6) Reaching an Agreement: The goal of mediation is for the parties to negotiate and reach an agreement which addresses the issues they have identified. The agreement, referred to as a “Memorandum of Agreement”, is reduced to writing by the mediator. The parties are encouraged to have the agreement reviewed by independent legal counsel before they sign. After the review, the parties will return to mediation to discuss the provisions, potential revisions, and to finalize the agreement. Once signed, the agreement is a legally binding contract that protects the parties during the period of a separation and that will be incorporated in any decree entered by the court should either party seek dissolution of a marriage/relationship.

Preparing for Mediation: Each party should have:

  • a realistic view of the issues in dispute
  • a clear understanding of his or her needs and goals
  • an initial presentation of his or her viewpoint
  • a willingness to compromise

In addition, the parties should be prepared to:

  • listen
  • evaluate
  • explore options to be considered in the general session and in caucuses
  • explore and evaluate different settlement scenarios
  • find ways to assist the other party to be flexible on critical issues
  • explore a resolution
  • make a decision