When a couple is facing a divorce, there are some different options for how they should handle the process. You can go the traditional route of hiring attorneys and filing the case in court, or you can try to resolve their differences through an alternative dispute resolution process such as divorce mediation.
Mediation may entered into voluntarily, but it may also be ordered by the court before a judge hears arguments in a case (depending on the state you are in). For example, in New Jersey, divorcing couples who disagree over child custody and economic issues must go to mediation first before having these disputes heard by the court.
While the processes have many similarities, there are some significant differences between court-ordered and voluntary mediation.
As the name implies, court-ordered mediation is a process that is mandated by the court to resolve certain aspects of a divorce or another family legal matter. This process takes place after the case has already been filed in court and before any arguments on the matter(s) being mediated can be made before a judge. The mediator is appointed by the court, and divorcing spouses can be ordered not only to participate in the process, but to do so in good faith. If the parties are able to resolve the issues being mediated, the court signs off on the agreement, and there is no need to litigate these matters. If no agreement is reached during mediation, then they must be resolved at trial.
Voluntary mediation is a process that takes place before the divorce or family law case is filed in court, and it can be used to resolve virtually any difference or dispute the couple may have. Voluntary mediation is chosen because both parties recognize the benefit of resolving their differences (or at least trying to resolve their differences) without the need for costly and protracted litigation. The parties choose their own mediator, who should be someone who is neutral and impartial and licensed to practice divorce mediation in your state.
Both voluntary and court-ordered mediation are confidential processes that are non-binding. This means that the parties must be in agreement on a particular issue in order for the agreement to be legally valid.
With both types of mediation, the results and success rates vary depending on each individual case. That being said, there are some distinct advantages that voluntary mediation offers:
- Voluntary Process: When both spouses desire to participate in the divorce mediation process, they tend to be far more motivated to produce a positive result. The participants are the ones making the decision to mediate, which makes them feel more empowered and more likely to take “ownership” over the process and results.
- Cost Savings: Another major factor that can be highly motivating for divorcing spouses who choose voluntary mediation is the amount of money that can be saved if they are able to resolve their differences through this process. For example, there is no need for the parties to hire attorneys (unless they want to); and even if they do, there is no extensive discovery, and the only thing the court needs to do is approve the final settlement. Since couples are fully aware that mediation can save them thousands or potentially tens of thousands of dollars, this alone can sometimes give them the motivation they need to make the process work.
- Reduced Tension: Mediation takes place in a cooperative rather than combative environment. If the parties agree to enter into it before filing a case in court, it can significantly reduce conflict and make the entire process far less stressful. Producing a more amicable settlement also helps preserve delicate family relationships, which is especially important if there are children involved.
If you and your spouse have decided to get a divorce, there is a good chance that, at some point, you will end up in mediation over at least some of the issues you do not agree on. In most instances (aside from cases that involve domestic abuse, highly uncooperative spouses, and similar issues), it is in a couple’s best interests to at least try voluntary mediation before taking the case to court. The cost is typically a fraction of what you would pay to litigate the case, and if you can get the case settled this way, you can save yourself not only a lot of money, but also a ton of emotional stress as well.