Should we File with the Courts before Coming to Divorce Mediation?

The short answer to this question is “no.” It is not necessary to file for divorce in court before you begin mediation, and it is not in your best interests to do so. Once you file with the courts, a hearing date is scheduled, and the clock starts ticking. It is best to engage in divorce mediation with as few outside pressures as possible and imposing a court deadline by which mediation “has” to be completed puts undue stress on the participants.

It is also important to point out that if you choose to go to divorce mediation, it will not be necessary to go to court later to litigate any of the matters that are resolved through the mediation process. Mediation serves as an alternative to litigation, and participants are able to work out the issues that need to be settled (in a divorce) on their own with the help of a divorce mediator. These include child custody and visitation, alimony/spousal support, division of the marital estate, and many others. 

With mediation, the terms and conditions of settlements around critical matters that will significantly impact the futures of everyone involved are controlled by participants, rather than the courts or the attorneys. The mediation process provides room for flexibility and creativity, and it allows participants to come together in a cooperative rather than combative environment that is more conducive to developing joint resolutions.

Once divorce mediation is completed and a settlement is agreed to, a legally enforceable agreement is drafted by an attorney and filed with the court for review and approval. At that point, the terms and conditions of the settlement are just as legally binding as anything that would have been imposed by the court or negotiated between attorneys representing the divorcing parties. The main difference being that participants are able to save untold amounts of time and money by bypassing divorce litigation and coming up with a more peaceable and workable resolution on their own.

Can we still Mediate if we Have Already Filed for Divorce in Court?

Absolutely. If one party has already served the other and started the court process, you can still enter into mediation and work out your major decisions regarding your finances, children, and other areas together. Once divorce has already been filed, however, you will need to notify your attorney that you have decided to go to mediation and resolve your issues instead of continuing to go through your respective attorneys. At that point, the divorce filing may be withdrawn or put on hold to give you more time to complete the mediation process. If the divorce papers are withdrawn, a new filing will be initiated after mediation is completed.

What if We Can’t Agree on All the Issues During Mediation?

Divorce mediation has a very high success rate, because couples usually understand beforehand that they need to enter the process with a cooperative mindset, and they are strongly incentivized to make the process work for them. That said, should there by chance be an issue that can not be agreed to in mediation, it does not mean that mediation was a waste. 

An agreement can still be prepared on the issues that have been resolved, and you have the option to either have attorney’s negotiate with one another and possibly litigate the unresolved issue or come back for another session or two of mediation to try and resolve them. Generally, if mediation can work to settle most issues, you can usually settle the rest of them if given enough time. And once you have started the mediation process, it often makes sense to continue using it rather than shifting gears and going to court. 

The bottom line is if you are considering mediation, you have very little to lose by at least giving it a try before filing for divorce with the courts. When you go to court, you are putting your divorce in the hands of a judge that may not necessarily be totally concerned about your best interests or the best interests of your child(ren).  The mediation process can produce a much better outcome for all parties involved and allow you each to move one from divorce with greater ease and clarity for you and your family.