Divorce Mediation Questions

updated by Tracy Achen, FAQ answers by Brette Sember

Using mediation can be an effective and cost-efficient way of reaching a divorce agreement that both sides can live with. Going through court-ordered mediation often results in a mutual settlement agreement that the couple negotiates privately, rather than having a judge decide everything in the courtroom. And even if mediation isn't required by the court, couples who mediate their divorce are generally happier with the results than those who litigate their divorce issues.

If you've chosen to mediate your divorce, below are some questions to ask a divorce mediator so you are prepared for the mediation process. There are also answers to common divorce mediation questions you may have about the mediation process.

If you're just getting started and want to understand the basics of mediation and how it works, this article on using mediation in divorce will bring you up to speed.

The mediation process - dispute, communication, closure

10 Questions to Ask a Divorce Mediator

If you will be using mediation to settle your divorce, you should set up an initial consultation with potential mediators to get an overview of what to expect. When you're contacting potential mediators, ask what the initial consultation costs. Some mediators may offer a free initial consultation while others will charge for the first meeting.

Once you've chosen two or three potential mediators, you need to make sure your initial consultation goes well. Knowing which questions to ask can help you better understand what to expect throughout the mediation process. Here are some of the main questions you should ask any potential mediator:

  1. How much will mediation cost? Is it a flat fee, charged by the hour, or per session? The total cost of mediation will generally depend on how many sessions it takes to resolve your issues.

  2. Do you take a retainer or do you expect payment after each session? Mediators have various payment plans you need to be aware of before you start mediating. 

  3. How are the mediation sessions scheduled? Will it depend on our work schedule or do you set appointments? 

  4. How long does mediation usually take? This will vary depending on how complex your case is, how prepared you are for the mediation sessions, whether you and your spouse can cooperate to reach an agreement, and the availability of the mediator. 

  5. Do I need to have my own lawyer if we go through mediation? It is always a good idea to have your attorney review any proposed settlement agreement before you sign anything? A family law attorney can explain the implications and risks of the agreement. 

  6. Is mediation appropriate for our situation? What if there are issues of domestic abuse or my spouse and I no longer speak with each other? 

  7. What documents will I need to bring to mediation? Generally, you’ll need a list of assets and debts, tax returns, pay stubs, property information, and any prior court agreements. You can get more ideas on what to bring in this divorce mediation checklist. 

  8. What if we can’t reach an agreement on everything? If there are certain issues that you and your spouse can’t agree on, these will need to be decided by a judge. It is in your best interest to resolve as many issues as possible in mediation, because taking it to court puts the outcome in the hands of the court. 

  9. Will you draft the final agreement? Some mediators will draft the final agreement, especially if they are also a lawyer. 

  10. Do you include drafting and filing the divorce papers with the court? Not all mediators offer this service, so it pays to find out at the beginning.

These questions can help you better prepare for the process and choose a mediator you feel comfortable with. After all, they will help guide your negotiations.

Divorce Mediation Questions & FAQs

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. 

The Mediation Process:

Mediation and Legal Representation:

Mediation Agreements:

Post Mediation/Divorce

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 (#ad), 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.

How do I postpone our divorce mediation until a later date?

Doris' Question: How do I go about postponing divorce mediation date until AFTER my husband goes to court over criminal family violence against him by the state of Texas?

Brette's Answer: Unless mediation is court-ordered, it takes place at the choice of the parties. It can simply be rescheduled. 

Do both parents have equal input during mediation sessions?

Question: During mediation sessions, are the parents meant to have 50/50 opinions and agreements on finalizing the final plan?

Brette's Answer: Mediation is about coming to an agreement. If you don't agree, then there isn't a settlement. Both parents have to agree to any parenting plan. 

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 I use pictures in mediation?

Barb's Question: My husband took the guns out of the house and hid them. I have pictures of all of them. Can I use the pictures in mediation?

Brette's Answer: Yes, but keep in mind that mediation is not a courtroom. It's a forum for trying to come to an agreement. Photos work as evidence in a trial if you get to that point. If you are trying to prove they exist as assets that should be divided in the marriage, this certainly proves the point. If you are concerned about your safety and that is why you want proof they exist, I suggest you talk to your attorney immediately about an order of protection.

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.

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. 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.

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

O's Question: I have agreed to mediation for divorce. We were married for 24 years, 20 years in business together, have 2 kids in college and a 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 his attorney make changes to the mediation papers without telling me?

Julie'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.

Are mediation agreements enforceable?

Jessie's Question: I'm getting ready to go to trial 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 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.

Can I draft my own visitation order based on what we 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?

What can I do if he lied during mediation?

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.

How do I change the mediation papers?

Maria's Question: My husband and I went to mediation, I agreed to the terms, and the amount of child support to be paid. I have not yet received the mediation papers, but feel if we went to court the judge would order him to pay more support. 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.

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 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 amount of child support and alimony impossible to pay. 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.

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 weren't addressed at mediation, nor were they 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.

Can mediation help with post-divorce agreements?

Robbie's Question: My ex-husband is not following the divorce agreement and will not cooperate in selling 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.

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.

What can I do if I was pressured to sign the mediation agreement?

Janice's Question: We went to mediation for our settlement agreement. After 9 hours of negotiations, I was emotionally distressed and I told them that I wanted to leave. They wouldn't let me go 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.

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

Bridgett's Question: We'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.

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