The decision to divorce is only the first of many decisions that must be made when a marriage is over. You must then decide whether to hire attorneys and who to hire if you do, how to divide your assets, what custody and visitation will look like, and determine child and possibly spousal support. There may be other issues unique to a marriage that you must also decide. Some of these decisions are easy and you can make them in your own living room, while others are intensely heated and neither of you will give in, which may lead you to believe a judge must make those decisions. Those intensely heated issues, and others that you cannot work out on your own, do not necessarily have to go before a judge, though. Divorce mediation is an alternative that allows you to avoid the cost, time, and uncertainty of litigation while not requiring you to make these decisions entirely alone. If you would like to learn more about mediating your divorce, an experienced family law attorney with King Law Offices may review your case and discuss your options. Call (888) 748-KING to speak with a staff member about scheduling a consultation in one of our offices in South Carolina or North Carolina. We proudly serve Winston-Salem, Rock Hill, Mecklenburg County, Haywood County, and Watauga County.
What Is Divorce Mediation?
Divorce mediation is a voluntary process in which a third party, known as a mediator, helps the couple who is divorcing settle and reach agreements on some or all of their core issues, such as child custody, property division, and spousal support. The mediator facilitates discussions but does not make any decisions or offer legal advice to either party.
The intention of mediation in a divorce is to resolve the divorce outside of court and create a mutually agreeable settlement agreement. That intention relies on open communication and compromise between the spouses. Individuals should understand that while the intention is to keep the couple out of court, because it is a voluntary process, there is no requirement that mediation be successful. Both parties should cooperate and make their best effort to come to an agreement, but if they are unable, the case can move on to court, where the judge will review the case and all its facts and make a decision for the couple.
Benefits of Divorce Mediation
While many people believe the path to divorce must go through a courtroom, divorce mediation has many benefits, including the potential of keeping the couple out of court. Even in cases where one or both spouses believe that finding an agreement may not be possible, mediation can be worth trying. However, if a spouse has genuine concerns regarding the safety or success of mediation, such as domestic violence, they may want to consult with an attorney to learn more about their options and whether they can or should engage in divorce mediation.
Increased Privacy
Court hearings are generally public, which means anyone can enter the courtroom and listen to the case being heard as long as they do not disturb the hearing. The orders that result from these hearings are also public record, which means that anyone with a few key pieces of information (such as names or a case number) can review them. Divorce mediation offers increased privacy by closing the sessions and allowing only the mediator, the two spouses, and in some instances their attorneys, to be present.
The confidentiality of mediation means that no one else will know what is said during a session. Additionally, this confidentiality means that whatever an individual says during mediation cannot be used against them in court later. This allows the parties to speak freely, stating their concerns and desires for the outcome without fear of repercussions for what they say. This also means that the final agreement can remain confidential so that others are not privy to the details unless the divorced couple wishes to share them.
Flexibility of Agreements
When judges make decisions in divorces, they are bound by the law. Because the law cannot account for every possibility, the solutions offered tend to be generic and not always a good fit for a particular divorce. Divorce mediation offers the couple the opportunity to tailor both the process and their solutions to their unique circumstances and needs. While they cannot agree to anything illegal, they can create agreements that are more creative and fit their needs better.
More Cost-Effective
The cost of litigating a divorce can be very unfriendly to people’s budgets, especially considering that each spouse is now responsible for an entire household of bills on one income while also paying divorce expenses. Divorce mediation does have a price tag, but it can be considerably less expensive than litigating the divorce. Both parties share the cost of the mediator and may save money on attorney’s fees if they have one, as the attorneys may spend less time on their case due to the agreements the couple makes in mediation.
Better Co-Parenting Potential
When a divorced couple shares minor children, they will be forced to interact with each other at least until the children are adults, and often long after the children are grown. While many couples can manage a civil relationship for the sake of their children, this civility may not create the best co-parenting relationship. With divorce mediation, parents can foster open communication and maintain a more positive relationship after the divorce, allowing them to more easily and comfortably co-parent their children.
Greater Control Over the Outcome
Mediation allows the spouses to negotiate effectively and create their own divorce agreement. This gives the couple greater control over the outcome, rather than relying on a judge to create an agreement for them. The parties actively participate in the decision-making, which means that even if the agreement is not precisely what they want, it is more likely to be something that satisfies them. They may also be able to prioritize what is most important to them so that they can allow their spouse to have their way on matters that are less important while negotiating harder for the matters that they consider more important.
Faster Resolution Times
Court proceedings can be drawn out, as the couple must first get on the docket, then wait their turn to be heard. Once their hearing date arrives, the hearing can take time and then there is the wait for the judge’s decision. If the judge needs more information, there can be additional hearings and more waiting for decisions. Mediation can resolve matters much more quickly, often in a matter of weeks rather than the potential months that court proceedings may take. Depending on how many issues the couple needs to resolve and how quickly they can do so, some couples can complete mediation in just two or three sessions, making it even faster.
Improved Communication
The structure of the mediation process encourages the parties to have an open dialogue. This can help the spouses learn healthier communication skills which will help them more easily avoid future conflicts, and when unavoidable, resolve future conflicts. This promotes better relationships for the parties, their children, and others around them.
Less Stress
Litigating a divorce is stressful. Determining what to say, collecting evidence, appearing before and speaking to a judge, and waiting on the judge’s decision are all extremely stressful parts of litigating a divorce. Mediation can be much less stressful. Parties are free to speak openly, without repercussions or their words used against them, and with the ability to work with the mediator to clarify what they mean when their words are not entirely clear. Parties do not need to collect evidence or “prove” anything in divorce mediation, as they are working together to find solutions. The reduction of stress can also improve communication and help the parties find agreement.
Puts the Children First
Divorce mediation puts the children first in a couple of ways. First, it allows the couple the ability to discuss and negotiate sensitive, adult matters away from their children’s eagerly curious eyes and ears. The children do not have to see or hear any arguing that their parents may do as they try to work out the details, alleviating some of the worry and stress that children feel when their parents are divorcing.
Mediation also puts the children first by eliminating any need for the children to testify or appear in court at all. The children will not be forced to talk to a judge about which parent they would prefer to live with or anything they may have seen or heard from their parents. Again, this reduces stress and pressure the children may feel, as well as any feelings of being caught in the middle or needing to choose sides.
Agreements Are Enforceable
One of the biggest perks of divorce mediation is that the agreements are exactly that: agreements that the parties make. This means that both parties are far more likely to comply with the terms of the agreement. However, in the event that one of the spouses fails to comply with the agreement’s terms, mediation agreements are enforceable in both North Carolina and South Carolina. This means that if one spouse breaks the agreement, they can face consequences. An attorney at King Law Offices can provide additional information regarding enforcing a divorce mediation agreement.
Preserves Relationships Between Spouses
Even though both spouses are often arguing for what they believe to be best, especially when it involves children, litigation fosters animosity. Arguing before a judge encourages both spouses to feel angry and bitter toward each other. Mediation focuses on and encourages preserving relationships. Mediation has a cooperative nature, which encourages more positive relationships outside the mediation sessions.
Develop Conflict Resolution Skills
Mediation helps the parties develop conflict resolution skills. Because the point of mediation is to try to avoid court, the parties must work together to try to find other ways to resolve their disagreements other than simply threatening court. While court is still an option if the couple is truly unable to agree, because most couples are trying to avoid court, they will often work harder to find solutions. This helps them find new conflict resolution skills that they may not have had before.
Greater Post-Divorce Stability
Perhaps one of the biggest benefits of divorce mediation is that it can provide greater post-divorce stability for both the divorcing couple and their children. When a court renders a decision, it is often one that at least one of the spouses does not agree with. In some cases, this can lead to a divorce appeal, while in others, it can lead to motions to modify the court order. In either an appeal or a modification request, there is a period of uncertainty as the parties wait for an answer from the court. If the appeal or modification is granted and the decision is changed, everyone must adjust to the new circumstances. If the change does not work out as hoped, there may be more modifications and more changes, all of which can lead to a lack of stability that can be confusing and unsettling for children and frustrating for parents.
When the parties are able to create an agreement in divorce mediation, it is usually an agreement that both parties are satisfied with, if they are not truly happy with it. This satisfaction, combined with the fact that the parties have agreed to terms they know they can handle, means that the couple is much less likely to want to make changes. This does not mean there will never be changes, but it does mean that barring a significant change in circumstances, the parties are more likely to leave their agreement in place long-term.
Additional Considerations About Mediation
While divorce mediation has a plethora of benefits, there are some additional considerations that parties should be aware of before they go into the process. These considerations do not mean that mediation will not work or should not be attempted. They are simply things to be aware of as they begin to navigate the process.
Not All Terms Will Be Fully Agreeable
Mediation is meant to avoid court and allow the parties to create an agreement of their own that is not imposed on them by the judge. Individuals may make the mistake of believing that this means any mediation agreement that results will be one that they are in complete agreement with.
However, in many cases, one or both parties will accept some terms that they do not fully agree with. They may do this to avoid conflict or to speed up the mediation process or they may have other reasons. As long as the individual understands that this is not required and is deciding to accept those terms of their own free will, they can do so. If the individual is feeling pressured or has been threatened outside of mediation to accept terms they do not agree with, they should speak with the mediator or their attorney if they have one.
No Guarantee of Agreement
Another important consideration about divorce mediation is that there is no guarantee of agreement. This means that the parties may ultimately pay for mediation and still pay for the cost of litigating the divorce as well. However, it is important that spouses consider mediation as a first step before resorting to litigation. Even if they can only come to an agreement on one issue, that can reduce the time they spend in court and reduce the number of issues the court must decide, which can still save time and money. If they are unable to reach an agreement on any issues, they can still proceed to litigating the divorce with the confidence that they have done all they can to handle matters on their own.
Participation May Be Required
Divorce mediation may be required in some cases. When this is the case, both parties are required to participate or they may face legal consequences, such as being held in contempt of court or other sanctions. Even if an individual does not believe that mediation will be successful in their case, they must participate and make a good faith effort if the court has ordered them to do so.
If an individual has specific concerns regarding mediation, such as domestic violence or other forms of abuse or an untreated mental health condition that may interfere with the mediation process, they should consult with an attorney or address those concerns with the court rather than attempting to avoid mediation. Depending on the circumstances, mediation may be waived in these instances.
Does North Carolina Require Mediation in Divorces?
N.C. G.S. §50-13.1 provides that if visitation or custody are contested in a divorce, the court will order mediation. This also applies if visitation or custody issues arise in requests for modifications or in motions to show cause or motions for contempt. However, it does not apply to issues related to spousal support, child support, or other economic issues. This does not mean spouses cannot address alimony, child support, or other economic issues in mediation; it simply means they will not be ordered to mediation to address those issues.
Another program worth noting that relates to mediation is the North Carolina Courts Family Financial Settlement Program. If the parties are ordered into this program, they are often also ordered to participate in mediation. In this instance, alimony, child support, or other economic issues are part of the mediation process.
Does South Carolina Require Mediation in Divorces?
Rule 3 of the South Carolina Alternative Dispute Resolution Rules indicates that all domestic relations cases with contested issues are subject to court-ordered mediation with few exceptions. Some cases can be exempted but one party will need to file a motion to exempt. The parties can also choose to conduct early neutral evaluation or arbitration in lieu of mediation. Individuals who wish to consider alternatives to mediation may want to consult with an attorney to discuss how each option may benefit their case. Whether you are in Winston-Salem, SC, Rock Hill, SC, Cornelius, NC, Charlotte, NC, Waynesville, NC, and Boone, NC, our experienced divorce mediation attorneys can help you understand your legal rights.
How a Divorce Attorney May Benefit Your Mediation
Whether you choose to engage in divorce mediation on your own or do so because the court has ordered it, there are many benefits to your divorce and the future of your relationships with your former spouse, children, and others. While mediation allows the couple to work together to find an agreement that works for them, an attorney may still offer some additional benefits. If you choose to hire one, a divorce attorney from King Law Offices may be able to offer legal guidance during the negotiations, review any agreements for fairness and legality before they are signed, and if mediation fails, represent you in court. Call (888) 748-KING to schedule your consultation in one of our North Carolina or South Carolina offices.