21st Century Divorce Cases: The Mediation Process

Divorce cases can be some of the most challenging and emotional legal actions. Indeed, divorce cases strike at the heart of the lives of those individuals that are the parties to these cases. As a result, courts have taken significant steps in recent times - particularly over the course of the past fifteen years - to attempt to find alternative courses of action that can assist in resolving divorce cases and keep emotions better in check along the way.

One of the more widespread developments that has taken place in regard to divorce cases as been the introduction of mediation into the process itself. Mediation is defined as being an informal system of negotiation that is overseen and managed by an independent third party. In the case of divorce cases, specially trained mediators are being appointed by courts to oversee this type of domestic or divorce related mediation.

In the past several years, courts in a growing number of jurisdictions have moved towards making mediation a mandatory part of the divorce process. Therefore, rather than some couples involved in a divorce voluntarily taking part in mediation, all couples divorcing in some jurisdictions must participate in mediation.

Mediation typically addresses a number of elements of a divorce case. In most jurisdictions, mediation will be engaged in to deal with issues surrounding child custody, child visitation (now commonly known as parenting time in many states), child support (although most states have specific guidelines pertaining to child support), property division, debt allocation and spousal support or maintenance.

There are a number of different ways in which mediation can be approached. For example, a mediator typically will schedule a series or separate sessions, each session designed to deal with one or another of the specific issues that have been discussed a moment ago in this article.

Ideally, through the mediation process, the parties to a divorce will be able to come to an agreement on all of these various and sundry issues. However, in many cases, this does not occur. However, the failure to obtain agreement through mediation on all of these issues does not mean mediation was not successful. In fact, it is more than likely that agreement will be reached on at least some of these issues.

Once the mediation process is concluded, the mediator (together with the parties) will report back to the court the extent and nature of the agreement that is reached between the parties. Such an agreement will be incorporated into the final divorce decree or order to the court.
As an aside, most mediators conduct their sessions with the parties to a divorce case without attorneys present. While attorneys may be present at an initial session in the mediation process, the bulk of the sessions are undertaken between the mediator and the parties individually.

In summary, mediation continues to play an ever increasing role in divorce proceedings. Indeed, even those jurisdictions that have yet to make significant use of mediation are looking towards incorporating it more broadly in their proceedings in the future