In general, when two parties to a divorce or custody dispute can't agree on something, the judge must decide the dispute. Obviously there is risk in this because 1) the judge doesn't know you or your family and the many nuances of your relationship, and 2) judges get it wrong sometimes (a lot of the time, actually). In addition, the judge usually doesn't have the time to spend with the parties hashing out all that needs to be addressed. That, unfortunately, is what happens when you rely on a stranger to resolve a very personal matter.
Mediation gives the parties the chance to come to their own agreement, with the help of a mediator. The mediator is a neutral party who tries to help the parties reach an agreement, and it's done in a way that keeps the parties separated so as to not incite any emotions or passions during the process.
In short, the mediator assists the couple in negotiating a resolution to their divorce or custody dispute. Parties have the opportunity to discuss the issues, clear up any disagreements, and come to a compromise that is feasible for both. In a mediation, you can give and take. You can give up issues that are not important to in exchange for those issues that are. Oftentimes, when a judge must decide, it is an all or none situation.
The mediator is an objective party. It is not her job to resolve problems or force an agreement on the parties. The mediator helps the parties come to an agreement by acting as an intermediary. She may offer an opinion or make suggestions, but at no time is she allowed to force an agreement upon the parties. The worst thing that comes out of a mediation is the status quo. In other words, if you can't reach an agreement on the issues, there are no negative consequences. You're just where you were when you started. Sometimes, in a mediation you can agree to some issues but leave some for the judge to decide. While the goal of any mediation is to resolve everything on the table, this can considerably lower the expense of the remainder of the process.
Advantages of Divorce Mediation
You save time and money. If successful, mediation means sidestepping the formal process of divorce court. This shortens the process for the parties and helps minimize the caseload of the Family Court System, gets your out faster, and for less expense.
Mediation is fair to all concerned. The mediator is a third-party who has no interest in the outcome. She stands to gain nothing. Because of her objectivity, she may be able to see solutions that the parties can’t because she is not emotionally invested in the outcome.
Mediation is a confidential process. There is no court reporter taking down every word said. Any notes taken by the mediator are thrown away afterward. You don’t have to worry about your dirty laundry being aired in public. There is no public court process. And if you are unable to resolve the dispute at the mediation, nothing that happens there is admissible later in court.
The divorcing couple is in control and not at the mercy of a divorce court judge. As I mentioned earlier, judges are human--and they are busy. This means that they don't have the opportunity to listen to the parties and really see where they're coming from, whereas a mediator does.
How to Prepare for Divorce Mediation
Do your homework. Work with your attorney to make sure that all issues to be covered will have a fair and equal outcome for you. You will be mediating on child support, spousal support, retirement accounts, division of marital property, and debt. Be sure to have all your ducks in a row!
Beware of your future needs after a divorce. Do a post-divorce budget and go into mediation determined to negotiate for what you need to survive financially after divorce.
If you have children, make them your main concern.
Parents can't go into mediation with the hope of destroying the other if there are children involved. Keep in mind that children need two parents who walk away from divorce financially and emotionally whole.
I love mediations for the main reason that it puts the control back into the parties' hands. Mediation gives you the opportunity to insist on what is truly important to you. One of the worst things about divorce is the feeling of a lack of control when you have a judge deciding major issues for you and your children that will bind you for years in the future.