Divorce Mediation Questions

The following divorce mediation questions highlight some of the issues that may come up when you mediate your divorce settlement. Learn about the cost of mediating your divorce, how to approach the process, how to handle issues that come up during mediation, and more as you read through the answers from the legal expert.


What is the cost for a mediator compared to an attorney?

Tina's Question: My husband has become verbally abusive & I wish to separate/divorce, however we have a child together & are in deep debt & likely cannot afford an attorney. What is the cost for a mediator compared to an attorney and do we have to have an attorney to divorce (he will likely contest everything for spite)?

Brette's Answer: A mediated divorce is much less expensive than a contested divorce. The cost will depend on the mediator's rates (which vary with geographic location and with the type of background the mediator has). You will both have to hire attorneys however, who will advise you as to your rights under your state law. Even with this expense, it will cost much less than a traditional divorce.

Do I have to file for divorce if I want to go through mediation?

Brette's Answer: Most people using the mediation process have already filed for a divorce, but you don't necessarily have to file to begin mediation. For instance mediation could help you decide how you will share the costs and who will file. Good luck.

What is the best way to approach mediation?

Marlene's Question: I am getting divorced after 25 years of marriage. We don't have that much, but I do have a pension and a tax shelter annuity that I do not want to give up. We have a house that I feel we should split. We are planning on going to a mediator. Do you have any advice for how to approach this?

Brette's Answer: My book, No-Fight Divorce, will tell you exactly how to approach mediation. There are lots of things you can do to get ready, such as making lists, having preliminary discussions and also really trying to get your head screwed on in the right way to approach it.

What should I expect from the mediation process?

Eunice's Question: I have been a stay-at-home mom for my entire six year marriage. We have 3 children, one of which is severely disabled. My husband has filed for divorce, but won't give me enough money to maintain the standard of living we once had. What can I expect to get when I go to mediation and what should I fight for?

Brette's Answer: A mediator is not your advocate and is not there to help you stand up for your rights. Your mediator should insist that you each retain an attorney who will go over you what you could expect to get in court. This information will guide you as you go through mediation and make compromises. It certainly sounds like child support, spousal support and a property settlement are the answers.

I am scared about mediating with my husband.

Katie's Question: I am so scared about mediating with my husband. I have twin 2 year old girls and I am requesting that any visits with my mother-in law be supervised and that they not go into their house because of cigarette smoking. They have said "they do not want to be told they cannot cigarette smoke in their home". My soon to be ex is incapable of maintaining boundaries with her.

Brette's Answer: Why are you scared of mediation? There is a mediator who directs the process and helps you work through it. Unless you are in a violent situation, there is nothing to be afraid of. If you prefer, you can just hire an attorney to represent you. I think it is reasonable to include a provision that the children not be taken to a home where smoking will happen in their presence, however it is not reasonable to say the grandparents cannot see the children ever.

Can my mom go to mediation with me?

Brette's Answer: That would be up to the mediator and your spouse. Everyone has to agree.

Can he choose which lawyer I hire and the mediator we use?

O's Question: have agreed to mediation for divorce. Married for 24 years, 20 years in business together, 2 kids in college, teenager at home. In order to keep cost down, my husband insists in meeting with the lawyer or mediator before he/she represents me. Basically he wants to choose who we hire for me.

Brette's Answer: It would be unethical for a mediator to meet with your husband without you present. You may hire any attorney you like to represent yourself but if that attorney meets with your husband first, he or she will be unable to represent you.

Is it a good idea to have your lawyer handle the mediation?

Question: Can a lawyer hired by one partner then become the lawyer to handle a mediated divorce?

Brette's Answer: In my opinion, that is inappropriate. It is generally considered unethical for an attorney representing one of the parties to mediate. When you mediate you need to have an attorney you can consult with on the side who will give you advice about how your case would fare in the courts. It doesn't sound like you would have that in this situation, which puts you at a disadvantage.

A mediator truly should be a neutral third party. If that mediator has already had confidential communications with one spouse, then I don't feel he or she can be completely impartial. And even if he or she can, I don't think the other spouse can ever completely believe in the neutrality. If the non-hiring spouse wants to go along with it, that spouse should be asked to sign a waiver.

Can we continue mediation without our lawyers being present?

Mary's Question: We have recently had one mediation session with our attorneys in attendance. In hopes of saving money, we both want to go to the same mediator again without our attorneys present. Is this allowed?

Brette's Answer: Yes definitely. In fact, it is unusual to go to a mediator with your attorneys.

Is a mediation agreement enforceable if the lawyer didn't sign it?

Laci's Question: Are our mediation papers legal if our lawyers did not sign them? We only got the handwritten copy from the actual day of mediation and never received a full copy.

Brette's Answer: A mediation agreement is not enforceable until it becomes part of a court order, signed by a judge.

Can I write up my own visitation order based on the schedule agreed to in mediation?

Lisa's Question: No motion for custody has been filed, only a motion for visitation by my child's father, but his very unethical attorney keeps trying to slip custody in. We agreed on a visitation schedule in mediation, but the mediator said my ex's lawyer has to write up the final paperwork because I don't have a lawyer. I'm afraid he is going to try to slip in custody again on the final paperwork. Can I write up my own visitation order based on the agreed mediation schedule for the judge to sign when we go back to court? I have one of the blank forms.

Brette's Answer: You can try, but it may not be acceptable to the court. Why not pay an attorney a set fee just to review the order he writes to be sure it protects your interests?

Can he legally make changes to the signed mediation papers?

Shannon's Question: During my divorce mediation everything was settled. We both signed the settlement (along with our attorneys). The final mediation will be filed with the court on Tuesday. He is now saying that he has contacted his attorney to make changes to the agreed upon mediation. I do not agree with the changes that he wants to make. Can he or his attorney legally make changes to the mediation papers since we have all signed the agreement in mediation?

Brette's Answer: No, he can't change it unless you agree. He can attempt to present it to the court, but if it is not the signed, initialed agreement it isn't valid and you need to approve.

Can his attorney make changes to the mediation papers without telling me?

Julies's Question: We went through mediation and came to a mutual agreement and signed the mediation papers. When I received the final papers, I did not notice that they had been changed by his attorney. I signed them thinking that they would be the same as the mediation papers. Can his attorney just change them in his favor and not let me or my attorney know about it?

Brette's Answer: Yes. It is your attorney's responsibility to review them and make sure they contain what was agreed to.

Can initial mediation papers be changed if circumstances change?

Cecilia's Question: My brother agreed to pay $1000 in child support and $1000 a month for alimony during mediation. They did the initial sign and then they were told that the papers would go back and forth to finalize and then be filed in court. The next day my brother lost his job making the child support and the alimony impossible. Does he have to go to court to get this changed (even though it hasn't been filed)? Is it too late or can he change it?

Brette's Answer: They should return to mediation to work out a new plan. Nothing is final until a court orders it.

How do I change the mediation papers?

Maria's Question: My husband and I went to mediation, I agreed to the terms, (i.e. based on his wages he would pay $300 month child support for 2 children). I have not yet received the mediation papers but feel if we went to court the judge would order him to pay more. How do I change the mediation papers, before we go to court?

Brette Answers: If you have signed a settlement agreement and it has been filed with the court, you will need to attempt to withdraw it, but that is difficult. If you have not yet signed an agreement, just don't sign the papers.

Topic: Are mediation agreements enforceable?

Jessie's Question: I'm getting ready to go to trial Thursday for dissolution of marriage. We are fighting over whether or not I get the interest that was earned on my money that is in a money market account. He is now petitioning the court to enforce the original (voluntary meditation) mediation agreement, which did not state that I would be awarded the interest on the money. He has continued this case for 9 months and has gained more interest money. Will the judge enforce the mediation agreement or proceed with the trial? Can I take him to small claims court if the mediation is enforced to retrieve the interest?

Brette Answers: It sounds like you need an attorney who will help you with this. If he has earned interest on your money, you should be entitled to the interest. If you signed an agreement in mediation, it is probably binding. It's unlikely you can go to small claims court since a divorce decree is binding on all the issues in the case. You need to have your situation reviewed by an attorney who can tell you what to do next.

He lied during mediation. What can I do?

Amanda's Question: If my ex lied to the mediator to win, and I found out it was a lie, can this affect the agreement? Will he get into trouble for this?

Brette Replies: It depends on what he lied about. I also don't know what issues you mediated and if the mediated agreement became a court order, so it is hard for me to answer. If you mediated financial things, both parties are required to make full and complete financial disclosure. Failure to do so is a problem. I suggest you either talk to the mediator, or contact an attorney about your concerns.

Can I have the mediation papers voided if he lied?

Kathie's Question: My husband and I settled at mediation almost a month ago and the paperwork is set to go before the Judge next month. However, I had to terminate my attorney as I could no longer afford her services. I just found out that my husband has stocks that he has sold for over $9,000.00. I do not know how much stock he has left, but this was not addressed at mediation, nor was it listed on his financial affidavit. Can I have the mediation paperwork voided because he lied and ask the Judge to have this issue reviewed?

Brette's Answer: You can have it withdrawn. You're going to need an attorney though if you plan to go trial on this.

He won't finish mediation because he lied on the disclosure.

Wendy's Question: My husband and I started the mediation process and have gone to 2 sessions. However he will not go the final meeting because he lied when filling out his financial papers finally. What should I do? I can't afford a lawyer.

Brette's Answer: It is a shame to have gotten so far and have him not finish. However, if he has not been truthful, the process is tainted anyhow. If you can't afford an attorney, then you can either represent yourself or talk to an attorney about getting your husband to pay your legal fees. Before doing any of that, I think you should talk to the mediator to see if there is a way to get him to come back in and correct the papers and move forward.

What if my husband didn't go to the court ordered mediation?

Leah's Question: We were scheduled for mediation to discuss visitation and child support, but he didn't come to the meeting or even call in to the mediator. Since this was court ordered mediation, how will the judge handle it?

Brette's Answer: If the mediation was court ordered, you husband made a mistake in not attending. The court will not look favorably upon that.

Topic: Appealing an unfair settlement agreement.

Janice's Question: We went to mediation for our settlement agreement, and after 9 hours of negotiations, I was emotionally distressed. I told them that I wanted to leave, but they wouldn't let me until I signed what I thought was a summary, which was marked through with a red pencil. They filed it as the final document the next day. My expenses, based on what the paper says, exceed my income. Why would I have agreed to that? The judge finalized the divorce, and I wasn't told about it until 6 days later. Do I have a right to appeal to try and get that part changed?

Brette's Answer: I'm disturbed by your situation. No reasonable mediator would go on for nine hours at a time with a tired client, no reasonable mediator would ask a client to sign an agreement she had not fully agreed to, and no reasonable mediator would submit a final stipulation to the court marked through with red pencil. There is always the right to appeal any court decision, but I can't tell you what your chances of success are. I can only suggest you see another attorney to go over the entire situation. Ask for a free consultation. » Return to top

Does the mediator have the right to change the court order?

Bridgett's Question: I've been to court, everything was settled, and we are divorced. Now my Ex and I have to go to mediation, which he's trying to change everything set by the judge. Does the mediator have the right to change the court order? Does my Ex have the right too?

Brette's Answer: The mediator does not make decisions, only assists the two of you in reaching an agreement. If you don't agree, no changes are made. Your ex cannot make changes on his own.

Are mediation papers considered public record?

Kim's Question: Are the papers from our mediation hearings considered public record?

Brette's Answer: No. However, a portion of the divorce records are.

Can mediation help with post-divorce agreements?

Robbie's Question: My ex-husband is not following the divorce agreement and will not cooperate in the sell of the marital home. He now wants to buy a foreclosed home, fix it up and then have me buy it. All this without taking me off the original mortgage which I don't think the a bank will do.  He is totally uncooperative and just wants me to agree to his plan. Can we go to a mediator now (divorce is final) and then take a mediated plan to court?

Brette's Answer: Yes seeing a mediator is a great way to resolve your issues.

Brette Sember - Legal Expert

©

Also see: