By Melissa Heinig , Attorney Cooley Law School
Updated by Ann O’Connell , Attorney UC Berkeley School of Law
Nolo was born in 1971 as a publisher of self-help legal books. Guided by the motto “law for all,” our attorney authors and editors have been explaining the law to everyday people ever since. Learn more about our history and our editorial standards.
Each article that we publish has been written or reviewed by one of our editors, who together have over 100 years of experience practicing law. We strive to keep our information current as laws change. Learn more about our editorial standards.
Even when parting spouses disagree, a divorce doesn't always have to be a big fight. For many couples, divorce mediation is an excellent alternative to battling it out in court.
In divorce mediation, you and your spouse meet with a trained, neutral mediator to discuss and resolve the issues in your divorce. Mediation sessions often take place in an informal office setting, but you might also be able to go through your mediation online.
A mediator can help you reach agreement on the issues you and your spouse need to resolve in order to finalize your divorce, such as child custody, child support, and property division. Mediators don't make decisions or offer legal advice, but rather serve as facilitators to help spouses figure out what's best for their situation.
When spouses reach agreement through mediation, most mediators will draft (and possibly file with the court) a divorce settlement agreement.
Lawyers in Divorce MediationYou don't have to have a lawyer to participate in mediation. In fact, many mediators discourage having a lawyer present because they're concerned that the presence of attorneys will create tension. If your mediator allows lawyers to be present, and your spouse will have one there, it's in your best interest to hire one, too. Otherwise, you'll likely be at a disadvantage in the negotiations.
But even if you don't have a lawyer with you in the mediation sessions, you might choose to consult with an attorney to advise you ahead of time and help you prepare for mediation. And it's usually a good idea, if possible, to have an attorney at least review any settlement agreement that you've reached during mediation before you sign it. Even though you'll have to pay the lawyer's hourly fee for these services, it could save you money in the long run if it helps you negotiate a more-favorable settlement or avoid unforeseen consequences of an agreement.
Although judges often order divorcing couples to participate in mediation before going to trial, you have the option of mediating on your own—either before you file for divorce or at any time after. Mediating your divorce has a lot of advantages over litigating it (fighting it out in court).
Successful mediation makes the rest of your divorce easier: Because you've done all the hard work of hammering out the details in the mediation, you can file an "uncontested" divorce. Uncontested divorces are usually less expensive and faster than litigated divorces (divorces where the couple battles in court).
With an uncontested divorce, you'll save money on attorneys' fees and the costs of going to trial. Also, many courts fast-track uncontested cases because everything has been worked out in advance, meaning that a judge will be able to finalize your divorce faster than if you'd gone to trial.
Mediation can work for many if not most divorcing couples, even ones who have hard feelings and lots of issues to resolve. While mediation is worth trying for most pairs, not all of them belong in mediation. Mediation might not be for you if:
For divorces without those kinds of circumstances, divorce mediation can be a great option. It's especially effective when both people show up open to compromise.
Don't reject mediation just because you and your spouse see a particular issue very differently—in other words, don't give up before you've begun. Mediation is a powerful process, and many cases that seem impossible to resolve at the beginning end up in a settlement.
Another Alternative to Court: Collaborative DivorceCollaborative divorce (also called "collaborative law" or "collaborative practice") is an alternative to litigating your divorce in court. But the process is quite different from traditional mediation.
With collaborative law, you and your spouse each hire specially trained collaborative attorneys who represent you in settlement discussions. No mediator or judge is involved. Ordinarily, both spouses and their attorneys sign a "no court" agreement that requires the lawyers to withdraw from the case if you can't reach a settlement and the case goes to court. In that situation, the spouses need to find new lawyers.
The downside of collaborative divorce is that if the negotiations fail, you will have to start your divorce process over from scratch with new attorneys. Having to find (and pay) a new attorney is often a powerful incentive for the spouses to work toward an agreement.
Although every mediator will have their own style, the general process of mediation is pretty consistent.
Before the mediation, you might speak with the mediator or an assistant and provide background information about your marriage, your family, and the issues in your divorce. Or your mediator might have you fill out a questionnaire. The mediator might also ask you to write up a "mediation statement" outlining your basic information and the divorce-related issues you think need to be resolved.
The mediator might also ask you to sign an agreement that says that you'll keep what's said in the mediation confidential and that you understand that the mediator can't disclose any of what goes on in your session in court.
Unless you do online mediation, mediation sessions are usually held in a conference room or comfortable office. Some mediators meet with everyone in the same room for the entire mediation, while others might break the spouses out into separate rooms for private discussions. For couples who have attorneys with them at mediation, the mediator might ask to meet privately with both sides before beginning the session.
After the mediator takes care of housekeeping issues such as the agenda for the session, you'll probably get a chance to make a short statement about your situation, as will your spouse. After you've each had a chance to speak, the mediator might ask some questions to clarify or get more information. Your mediator might repeat or summarize your points to confirm that they understand what you're trying to say.
The next step will be to figure out what issues you and your spouse really agree and don't agree on.
The two most important things you can do to reach an agreement are to:
Understanding your spouse's position doesn't mean you have to agree with it. But it's possible that, once you've listened closely to your spouse's concerns, you'll have new ideas about how to resolve disagreements.
If you finish negotiations and resolve some or all of your divorce-related issues, the mediator will write an agreement and, in many cases, a parenting schedule or parenting plan. Your settlement agreement will include only the topics that you resolved during mediation. (If you aren't able to agree on all the topics, you'll have to either agree on the unresolved issues later or ask a court to decide them after a court hearing.)
Some mediators will help you file divorce your paperwork with the court; others won't. (You'll want to ask potential mediators about the scope of the services they provide.)
If the court approves your settlement agreement, the agreement will become part of the final divorce decree. You can then enforce the terms of the settlement agreement just as you would any other order from a court.
Unless a judge orders you and your spouse to attempt mediation, divorce mediation is voluntary. That means you and your spouse will have to agree to mediate. If your spouse is on board, your next step is to find a knowledgeable, skilled divorce mediator.
When a judge orders mediation, you meet with a court-appointed mediator or, if the court allows it, a private mediator of your own choosing. If you're trying mediation on your own, though, you and your spouse will have to find a mediator you both agree to. One way to possibly avoid argument over the choice of mediator is to research potential mediators on your own and pick three that you'd be willing to hire. Then you could present the list to your spouse and let them make the final choice.
Personal recommendations are a great way to find qualified mediators. For example, you could ask a marriage counselor, a lawyer, or friends who've been through a divorce for referrals. Other sources for mediator referrals include:
If you make a list of potential mediators, you'll want to research each person's experience and specialty. At a minimum, you should make sure that they are experienced in divorce mediation (and if you have children, cases involving child custody and support).
Mediators can have a variety of backgrounds—for example, they can be lawyers, CPAs (certified public accountants), social workers, or other people with specialized training. The best mediator for your divorce will have experience helping spouses who face issues similar to the ones you and your spouse are dealing with.
Many mediators will agree to meet with you in person or on the phone to explain their process and answer any general questions you have. Before you talk with potential mediators, take a look at their websites and make a list of any questions you have.