Frequently Asked Questions About Divorce Mediation

What is Divorce Mediation?
Divorce Mediation is an alternative process for dissolving a marriage that allows the separating couple to decide all the major decisions necessary in such an important life decision. Couple who mediate create a parenting plan that is workable for them and beneficial to their children. They decide how to divide their assets and their liabilities and what to do with their personal property. Mediation is usually less expensive than the tradition adversary proceedings and helps to foster a good working relationship between the divorcing couple who must still function as parents.

How does it work?
Couples often ask how they can mediate when the entire reason their marriage failed! The answer is simple. With the help of a trained and skilled mediator the couple is guided through a process that allows them to focus on the needs of their families and themselves rather than dwell on past arguments and disappointments. Mediation is not counseling and there is no attempt to access blame or responsibility on any party; the emphasis is entirely on how to make the future arrangements work best for everyone. Mediation allows couples to divorce without destroying families.

Do you still need to go to court?
If you want to dissolve your marriage in the State of Connecticut, you must obtain a judicial decree which involves the commencement of a legal action commonly known as a divorce. With successful mediation, however, you will probably only have to make one court appearance at the very end of the process and that will be a brief one. Your case will be categorized as "uncontested" and only require very simple testimony as when and where you were married, the names of any children and how long you have lived in the state. The judge will review your written agreement (see Memorandum of Agreement below), decide that it is fair and enter a decree dissolving the marriage. Most such hearing take ten minutes or less.

Do I need to hire an attorney?
Most mediators will suggest that have legal representation during the mediation process, but that is certainly not necessary. If you are the plaintiff—the one who is bringing the legal action—you will need to file certain documents and forms and it would be helpful to have an attorney to do that. Some people decide to represent themselves or appear Pro Se before the court. It is also helpful to have an attorney to help guide you through some of the decisions you will be making in the mediation process. An attorney can explain your options under the law in your specific circumstances and offer expert opinions on possible outcomes. The mediator can help explain the law, but can not offer legal advice. Finally it is important to have an attorney review your final agreement to be sure that all of your rights have been addressed. Frequently an attorney will charge a much lower fee if you are involved in mediation because the amount of time that attorney must spend on your case will be considerably less than in a tradition divorce.

Can mediation be successful if the parties are not "equal"?
What if the husband is a highly successful executive with a great deal of experience in negotiating big business deals and the wife has been a full-time mom? How can the wife mediate against her husband? The answer is that the couple is mediating together. One of the jobs of the mediator is help keep "the playing field level" so that the parties can deal with one another despite differences in professional experiences or education. Also by focusing on the future needs of the family, the couple are working for a common goal despite the fact that they are separating. Remember, mediation is not arbitration in which a third party listens to both sides and then hands down a decision. In mediation the third party is there to assist the couple in reaching decisions with which they both can agree.

Does mediation always work?
No. There are couples who for whatever reason that are not successful in mediation. They are in the minority and process works for the great majority of those who attempt it. Even if the process does not work, neither party is at any greater risk because courts usually will not consider evidence of unsuccessful mediation offers in reaching its own decision. Therefore any settlement offer or discussion that might have been made in the spirit of compromise could not come back to haunt its maker later on.

A recent article in USA Today indicated that "several studies have shown that 60% to 65% of couples who mediate are able to hammer out lasting agreements".

Are all mediators lawyers?
Many mediators are experienced family law attorneys, but certainly not all mediators are lawyers. Many are mental health practitioners such as therapists and some have no other training at all. Presently there are no state laws regulating mediation and anyone can call himself a "mediator".

How can I be sure I have a competent and well trained mediator?
Although there is presently no state certification or licensing of divorce mediators, there are reputable organizations of mediators. You should ask if the person you are dealing with is a member of the Academy of Family Mediators ,the Association of Family and Conciliation Courts or the Society of Professionals in Dispute Resolution all of which are national organizations. In Connecticut, most reputable mediators are members of the Connecticut Council for Divorce Mediation. These organizations usually require their members to have a certain level of professional training, to follow a code of professional responsibility and to participate in continuing education. Finally, you should only deal with mediators who are fully insured.

How long does mediation take?
While the specifics of each couple’s situation will dictate the complexity and the length of their mediation, it is not unusual for the process to take 8-12 sessions most of which will be two hours long.

What does mediation cost?
The cost of mediation varies with the mediator but most charge an hourly fee payable at the end of each session. Typically, an additional two hour fee is charged for administrative work including the drafting of the couples’ Memorandum of Agreement. In central Connecticut mediators charge anywhere from $100 an hour to $250 an hour.

What is the Memorandum of Agreement?
The Memorandum of Agreement is a detailed written document of all the many agreements the couple has reached throughout the mediation process. It is this document that will form the basis for the divorce decree entered by the court. It is important that the Memorandum cover all the essential areas in sufficient detail so that the court can clearly understand what the parties have agreed and want to be made the orders of the court.

Why is mediation a better alternative to litigation?
Mediation is a better alternative for many reasons. It is usually quicker and less expensive. Litigation intensifies the animosity between the parties; frequently people say things during a nasty divorce that they may regret later but the words are preserved as official court testimony. Mediation encourages the parties to work together and focus on the future of their now two family units. Finally, mediated dissolution's tend to hold together longer and require far fewer future court actions. Due to the fact that the mediated divorce is the product of the parties, they feel invested in the decisions and strive to make them work. Orders handed down by courts often are resented by one or both parties.

Gerard I. Adelman
Attorney at Law
Family & Divorce Mediator
April, 1998

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