Mediation
Mediation is where most divorces that do not go to trial actually get decided. It is usually cheaper and faster than fighting, and it is sometimes the wrong process entirely. Almost everything written about it is written by mediators. This is not.
Mediation assumes two people who can negotiate on something like equal footing, in the same room, without fear. Where there has been abuse, coercive control or intimidation, that assumption fails — and a process built on it can be used as one more way to apply pressure. Many states that otherwise require mediation allow it to be waived or excused in these cases, and mediators are often required to screen for it. If this is you, say so before you agree to anything, and read safety planning first. Nothing on this page is worth more than that.
What mediation actually is
A neutral third person helps two people reach an agreement. That is the whole of it. The mediator does not decide anything, cannot impose an outcome, and is not a judge. If you do not agree, you leave without an agreement and the case carries on.
A mediator is neutral. That means the mediator is not your advocate, and is not looking out for you. A neutral has no duty to notice that you are agreeing to something poor, and generally will not tell you what you could have got elsewhere. That is not a criticism of mediators — it is the definition of the role. It is also why an agreement reached in mediation is usually worth having reviewed by someone whose job is to be on your side before you sign it.
A mediator who is also a lawyer is still not your lawyer.
What it is good at, and what it is not
| Works well when | Works badly when |
|---|---|
| Both of you can state what you want out loud | One of you is afraid of the other |
| The disagreement is about numbers or arrangements | The disagreement is about who was right |
| You both have a broadly accurate picture of the finances | You suspect assets are hidden or understated |
| You will have to deal with each other for years, because of children | One party will not disclose, or will not turn up |
| You want it over and privately | You need a court order to make something happen |
The third row is the one people misjudge. Mediation has no subpoena power. If you think there is money you have not been shown, mediation is not the tool that finds it — formal discovery is. What actually to do about that.
Is what you say in mediation private?
Mostly, and not absolutely. The exceptions are the part that gets left out of summaries, and they matter.
The Act was created in 2001 to replace what it describes as more than 2,500 differing state statutes. Its central rule is that a mediation communication is confidential and, if privileged, is not subject to discovery or admission into evidence in a formal proceeding. Parties and mediators can refuse to disclose what was said.
The privilege does not apply to a communication containing “a threat to inflict bodily injury”; to communications sought to prove or disprove abuse, neglect, abandonment or exploitation in a proceeding where a child or adult protective agency is a party; or where a person intentionally uses a mediation to plan or commit a crime, or to conceal an ongoing one. It also gives way in some felony proceedings where a court finds the need for the information outweighs the interest in confidentiality.
Not every state has adopted the Uniform Act, and states that have not apply their own rules. We have not verified the position in all fifty states, and we would rather say that than print a map we cannot stand behind. Ask the mediator directly what rule applies where you are, and get the answer before the first session rather than after.
What it costs
Mediators charge by the hour or by the session, and rates vary enormously by region and by whether the mediator is a lawyer, a therapist or a financial professional. We do not publish a national average, because the ones in circulation are not traceable to anything. What we can tell you is the shape of it: the cost is usually shared, sessions are counted in hours rather than months, and there is no discovery to pay for.
The comparison that actually matters is not mediation against zero. It is mediation against what the same issue costs contested. Run your own numbers on that — and see what divorce costs in your state, from official sources.
Questions to ask before you book
What is your training, and what were you before you were a mediator? Lawyer, therapist and accountant backgrounds produce genuinely different sessions.
Do you screen for abuse or coercive control, and how?
What are you required to keep confidential here, and what are the exceptions?
Will you tell us if you think an agreement is unfair to one of us? Many will not, by design. You want to know which kind you have.
Do you draft the agreement, and does it become a court order?
What happens if we agree on some things and not others? Partial agreement is common and often a good outcome.
What do you charge, who pays, and what happens if we stop halfway?
Before you sign anything
An agreement reached in mediation typically becomes binding once it is signed and, in most cases, approved by the court. Treat the moment before signing as the important one, not the moment after.
Two things worth doing first: check the list of things people commonly leave out of settlements — forty-three of them — and make sure anything about retirement accounts is written in a way a plan administrator will actually accept. That needs its own order, and it is routinely forgotten.
Confidentiality material read directly from the Uniform Law Commission’s summary of the Uniform Mediation Act (2001). State-by-state rules on mandatory mediation and on adoption of the Act are not yet verified on this site and are not stated here. Tell us if something here is wrong.
Keep reading
- Is this worth fighting over? — the arithmetic before you choose a process
- What divorce costs — by state, from official sources
- Hidden assets — when mediation is the wrong tool
- Domestic violence and divorce
- What am I forgetting?
- Representing yourself