What Is Mediation In Divorce?

  •   |   Meghan Freed

Black letters that say "mediation & divorce" on a white background with a blue border and the gold freed marcroft divorce and family law logo in the lower right hand corner.You have probably heard of mediation, and wondered, “What is mediation in divorce?”

Please read on to learn more about this way to resolve your divorce in Connecticut.

What Does Divorce Mediation Mean?

There are two types of mediation in Connecticut.  The first is an out-of-court process for resolving your divorce.  The second form mediation takes in Connecticut is a tool to resolve the outstanding issues in divorce litigation.

Read: ADR & Divorce

Read: Settlement & Divorce

Connecticut Mediation & ADR

The first type of mediation is an alternative method for resolving your divorce.  The default process for divorce in Connecticut is litigation.  Mediation and collaborative divorce are the two most common substitutes, referred to as alternative dispute resolution or “ADR.”  Your mediator guides you through all the issues you need to resolve in order for a Connecticut court to grant your divorce.  This type of mediation is our focus in this article.

Read: Mediation, Collaboration, or Litigation? 

Read: Alternative Ways to Divorce in Connecticut: Litigation, Mediation, and Collaborative Divorce

Mediation as a Settlement Tool in Litigation

The second type of mediation happens if your attorney suggests deploying mediation as a settlement tool during divorce litigation.  In that case, you will hire a private mediator not to guide you through your full divorce but to have one or two meetings to try to resolve outstanding issues.  The mediator people select in these cases is frequently a retired family court judge.

CT Divorce Mediation

In this article, we have focused on the first type of divorce mediation in Connecticut — the out-of-court approach to divorce.  In divorce mediation, the mediator serves as a neutral guide to help you reach decisions in your divorce.  Several topics must be decided for a judge to dissolve your marriage.  They are property division, alimony, and — if you have minor children — custody, and child support.

Read: What Is a Mediated Divorce in Connecticut?

Read: Telling the Children About Divorce and How Collaboration and Mediation Might Help

Are Divorce Mediators Lawyers?

Most Connecticut mediators are lawyers.  That said, Connecticut does not require that all divorce mediators be licensed attorneys.  Therefore, the mediator does not serve as an attorney in a mediation.  In other words, the mediator does not represent either spouse and can only provide legal information, not legal advice.  This is why we strongly recommend that you retain your own separate attorney.  We refer to this in Connecticut as mediation review counsel.

Read: Review Counsel in Connecticut Divorce Mediation

Read: Understanding the Role of Review Counsel in Divorce

How Does Divorce Mediation Work?

Generally speaking, your mediation will be a series of meetings between you, your spouse, and your mediator.  During those mediation sessions, your mediator will guide you through the decisions you need to make.  It’s important to note that the parties reach decisions in mediation, not the mediator.  This is different than a judge in a courtroom, who makes decisions in the form of rulings.  Arbitration is a private ADR process where the arbitrator decides, not the parties.

You’ll work with your review counsel one-on-one before or after mediation sessions.  In those meetings, you will review your decisions, go over any applicable legal advice from your review counsel, and make sure you’re comfortable with and understand the agreements you reached.  At Freed Marcroft, we also prepare the final settlement agreement you reach.

Virtual mediation is also an excellent option if you have busy schedules or are located far apart.

Read: Arbitration & Divorce

Read: Connecticut Virtual Divorce Mediation Lawyer

Can You Mediate Custody or Post Judgment Issues?

Yes, mediation isn’t only for divorce; you can mediate other family law matters, including legal separation, post-judgment, custody, and child support.

Are Divorce Mediation Agreements Binding?

Only Connecticut judges can order a marriage dissolved.  Once you reach a complete settlement agreement via mediation, you submit that agreement to the court for review and approval.  If the court approves your agreement, the judge will order that you are divorced and incorporate the terms of your settlement agreement into its ruling.  That’s how your mediation agreement becomes a binding court order.

Divorce Mediation vs Lawyer

A commonly asked question is about using a divorce mediator vs. a lawyer.  As we discussed, Connecticut mediators are typically lawyers but don’t function as either spouse’s attorney when they serve as mediators.  You can hire a lawyer- mediation review counsel- and still mediate your dissolution.  If you want to mediate, it’s critical that you retain an attorney who understands the role of review counsel.  Otherwise, you could wind up with divorce litigation.

If you are deciding between a divorce mediation or litigation, it’s essential to know that not all litigation is high conflict or ends up in a trial.

Read: How Is Divorce Mediation Different from Traditional Divorce Litigation?

Can We Use One Lawyer for Our Divorce?

No.  In Connecticut, one lawyer cannot represent both parties in a divorce.  However, a lawyer can be a neutral mediator to help spouses agree on their divorce.  That said, when a lawyer serves as a mediator, she doesn’t represent either spouse and can’t give either party legal advice.  That’s why we recommend each spouse retains review counsel.

Read: Why Mediate Your Divorce: 6 Key Benefits

Mediation vs. Collaborative Divorce

Both mediation and collaborative divorce are forms of ADR.  One of the key differences is that in a mediation, the parties meet with the neutral mediator together and their respective review counsel separately.  In a collaborative divorce, the spouses each have an attorney who participates in the collaborative sessions.

Read: Collaboration or Mediation?

Read: What Are the Big Differences Between Mediation and Collaborative Divorce?

Who Pays for Divorce Mediation?

One of the nice things about mediation is that you can decide how to pay for the divorce mediation right in the mediation.  Some spouses use a joint credit card or bank account to cover mediation costs.  Others choose to split mediation fees 50/50.  In some cases, one spouse covers more of the cost of mediation than the other.  There’s no hard and fast rule — it’s up to the two of you.

Read: How to Help Keep Your Legal Fees Down

Next Steps

Please check out our Divorce Information and Facts for more information about Connecticut divorce and family law. If you have questions or want to learn more about how our team of divorce attorneys can help you, please get in touch with us here.

Freed Marcroft LLC

Freed Marcroft LLC