Mediation can be an excellent alternative to an expensive, messy, and painful divorce. If you and your spouse are able to communicate and make compromises, you can handle all of the heavy lifting yourselves.
You’ll be able to create a divorce settlement that you feel comfortable with, and you can come to an agreement behind closed doors.
Since mediation doesn’t involve the court, you may have some concerns. Don’t you need the court to make an agreement legally binding? Mediation sits in a unique space. Your agreement will ultimately become enforceable, but the process isn’t binding.
Here’s what that means.
What Is Mediation?
Mediation is the process of coming to an agreement out of court without the assistance of lawyers. If you and your spouse are in a place where you can get along and have an honest conversation with each other, you’ll be doing most of the work.
A mediation session helps to keep the process streamlined and on-topic.
A mediation session is when you and your spouse discuss how you’d like to conclude your marriage. You’ll work with a mediator who will explain your options to you and help you prepare for your divorce settlement.
The process is private and can often be conducted remotely through phone calls or video chat. The only people who need to be involved in the session are you, your spouse, and the mediator.
What Does a Mediator Do?
A mediator works for both you and your spouse. Unlike a litigated divorce where each spouse will have their own attorney, you will both share a knowledgeable mediator. The mediator will listen to each of your desires and concerns to assess the level of disagreement between both parties.
It’s the mediator's job to present you with possible solutions to your problems or concerns and answer questions you have about the process. The mediator won’t make any choices themselves. The mediator can’t force anyone to comply with the process or compel them to provide documents, and a mediator can’t make anyone tell the truth.
Mediators are simply there to help. They aren’t present to orchestrate a divorce with non-compliant or unwilling parties, which is why mediation is best reserved for simple divorces where both spouses are willing to communicate without bad intentions or ill will.
What Is a Binding Agreement?
A binding agreement is any type of contract that can be legally enforced. If you sign a document that states that you agree to abide by certain terms, you’re accountable for holding up your end of the deal. If you don’t, the other person (or entity) involved in the agreement can take you to court. You can be sued for failing to fulfill your obligations.
Some binding agreements are settled in arbitration. They may specify a penalty for failing to comply with the terms of a deal, and the penalty may be non-negotiable. This is almost never the case with agreements like divorce settlements unless documents like a non-disclosure agreement (NDA) are used as a part of the divorce.
Is Mediation Binding?
Mediation itself isn’t technically binding. Mediation sessions are conducted without the power of the court, and the mediator cannot decide on terms for you. If, at any point, someone decides to stop attending mediation conferences, they’re free to do so without repercussions.
Mediation is a completely voluntary process. That’s why, in order for it to work, you and your partner both need to be committed to using mediation. It’s a process that works on the honor system, and if one or both of you isn’t willing to be completely honest or if you suspect your spouse is hiding important information, mediation isn’t the right choice for you.
The discussion and agreement part of the process with a mediator is somewhat informal. You’re able to choose what you’d like to do, as long as you both agree. A judge will eventually review the agreement to determine if it’s fair and to verify that both parties freely agree to everything listed in the document.
While the process of mediation isn’t binding, the agreement will ultimately become binding once both parties have agreed and executed the divorce settlement document.
Is Mediation Enforceable?
Mediation can ultimately become enforceable. If you agree to the terms in mediation and file your divorce settlement with those terms in place, you’ve officially told the court that your plan is to abide by the terms of the agreement. Those terms become legally binding when the document is officially filed, which means the terms of your agreement can be enforced.
After the document is executed (a.k.a., formally filed and accepted by the court), it acts just like any other binding contract. If you don’t hold up to your end, your former spouse can hold you accountable for going against the divorce settlement.
What If Mediation Doesn’t Work?
If mediation doesn’t work, you’ll need to escalate the situation. You and your spouse can each hire a lawyer and continue your divorce in private arbitration. You’ll speak to your lawyers about what you want in the divorce, and your lawyers will meet with each other to find a solution. Your lawyer will keep in contact with you throughout the process.
If private arbitration doesn’t work, you’ll need to take your divorce to family court. This should always be a last resort. Taking your divorce through court is the most stressful method, and it’s also the most expensive.
When you put your divorce into the hands of a court, a judge will decide how things go. You lose your autonomy, and there’s a chance that neither of you will be happy with the outcome. Before you let things progress to that point, it’s best to consider where you’d be willing to find compromises.
How Mediation Can Help
Mediation can be a useful way to make decisions amicably with your spouse by talking through conflicts.
During your mediation sessions, a mediator will help to keep track of decisions that you’ve made and offer useful alternatives in situations where you can’t agree. When you and your spouse are finally in complete agreement, you can file for uncontested divorce.
While mediation isn’t binding, it can become enforceable once you execute your divorce settlement document. Couples who are able and willing to work together with a mediator may be able to avoid an expensive, argumentative, and drawn-out divorce process and move forward more easily into this new chapter of their lives.