Deciding to divorce can be one of the most emotionally challenging and overwhelming experiences a couple may face. Many couples who reach this point may have tried therapy or discernment counseling, but sometimes, despite their efforts, they realize that divorce is the best path forward. In such circumstances, it’s crucial to have the right support system to help navigate the process and make the transition as smooth as possible.
One valuable resource that many divorcing couples have benefitted from is divorce mediation. In divorce mediation, a couple works with a dedicated mediator to reach a mutually beneficial agreement. We sat down with Mike Musselman, senior mediator at Carolina Divorce Mediators, to explore what divorce mediation is, how it differs from hiring divorce attorneys, and how it can benefit couples as they move into the next chapter of their lives.
What is the main difference between hiring divorce mediators and divorce attorneys?
M: When you hire an attorney, you are litigating. The first thing most couples think about is, “We need to hire an attorney!” However, that attorney can only represent one of them. So, if the other partner does not want to feel disadvantaged, they will also want their own attorney. Then, both attorneys will go back and forth and try to reach an agreement, which they are unlikely to reach together. The next step is that the two attorneys will have to mediate before going in front of a judge, and then that judge decides everything for them.
A divorce mediator works with both individuals. The couple gets to stay in control of the process. Each partner is involved in the entire process from start to finish. With divorce mediation, both partners feel supported and included. Each partner gets to make decisions that are best for them. Through mediation, the couple will come up with a more comprehensive document. This document addresses everything in the mediation process to anticipate future scenarios and avoid future conflict. Through mediation, the couple has more autonomy to make specific decisions that are best for them and their family.
Conversely, when a couple hires separate attorneys, they give control to attorneys. The couple’s decisions might not be as customized and could ultimately be determined by a court judge (e.g., how to raise their children).
Attorneys eventually get involved in the mediation process. Can you share when that happens and why?
M: When a couple completes the mediation process, they get a document called a Memorandum of Understanding (which is not a legally binding). It is a comprehensive document explaining everything they agreed to in mediation. We’ll then refer them to a mediator-friendly attorney who will use the Memorandum of Understanding to draft their separation agreement.
The separation agreement is a legally binding document with notarized signatures. In the Carolinas, only attorneys can draft a separation agreement.
How much does a divorce mediation cost?
M: When hiring separate attorneys, there can be two large retainer fees, one for each attorney hired. Suppose a couple decides to use our divorce mediation services instead. In that case, most couples will complete the mediation services, get a Memorandum of Understanding, and the separation agreement from the mediator-friendly attorney that we refer them to for the cost of one attorney’s retainer fee.
When should a couple request divorce mediation?
M: Ideally, the sooner, the better. Mediation can be helpful, especially if a couple wants to begin living in separate residences, whether a therapeutic separation, trial separation, or separation, because they want to file for divorce. If the couple already resides in separate residences and doesn’t have a separation agreement, they want to schedule something as quickly as possible. The couple is more likely to work together amicably than if time goes on.
With more time, there are more possibilities of things happening that will create hurt, disagreement, frustration, or anger. These challenges could make mediation more difficult, clouding judgment regarding what is in the best interest of their family for the long haul.
What topics do you help divorcing couples find agreement on?
M: There is a lot that we help the couple anticipate. Divorce mediators walk couples through considerations year-by-year regarding parenting, finances, and beyond. I help them think not only about what is best for them in the present day but also in the future. For instance, “When your child turns 16 years old and begins to drive between residences, how close do you need to live?”
These questions allow clients to consider that maybe living 2-hours apart isn’t ideal, and they would rather live within 15-minutes of one another after thinking about their child driving back and forth.
Which divorce topics or questions are most surprising to your clients?
M: Oh yeah, there are many scenarios that I help couples anticipate that will eventually come up but may only be relevant after their kids’ ages. Some couples will tell me, “I don’t need to think about this right now,” but in reality, they do. I help couples not feel surprised down the road by asking the following questions: Have you thought about this? How will this get resolved in the future? What could you enforce in the future?
For instance, one topic that might not be relevant immediately but can be a tricky question to work through relates to future significant others. Suppose that you meet a new romantic partner at some point in the future. At what point do you believe it is reasonable to introduce them to your children? At what point can this new person sleep over when your children are home? Each parent wants to have influence and has an opinion on how to address that scenario.
How long does the divorce mediation process take?
M: If the couple is child-free, there is one half-day session. If there are children involved, there are two half-day sessions. The first session is dedicated to parenting and spousal support. I have each partner sign a disclosure agreement in the second session (or the first session for child-free couples). Each partner discloses all their assets and liabilities (e.g., property, vehicles, investments) and property distribution. We discuss the details of their finances and determine the value of property and businesses.
I also help provide referrals and steps for couples to navigate this process and update the necessary documents (e.g., trusts, wills, appraisals, and valuations of businesses).
What happens if a couple cannot reach a mutual agreement in divorce mediation?
M: There is really only one situation in which a couple won’t benefit from mediation: when one partner says, “I do not agree to anything.” If that is the case, I try to work with the couple to find any area they can agree. If they still do not agree, I refer to the law. The law says x, y, z – get legal advice, tell them everything you have shared here and what is happening.
Most likely an attorney will advise them on what the law allows them to do or not to do (which will be what I’ve worked with them on). Usually, if a person disagrees with the mediation process, they would rather be told by the judge what they will have to do.
Do you offer virtual divorce mediation appointments?
M: Yes, as long as one partner is a resident of either North Carolina or South Carolina. Those not living in the Carolinas can use a mediator directory to search in their area. Couples should also look at the mediator’s credentials and training to ensure their mediator utilizes psychological practices in their divorce mediation.
I’m considering separation or divorce.
We understand your difficult position—the crossroads of staying together and working on your marriage or separating. As you consider which direction you might take, ask yourself these five questions to help you decide if it is time to end your relationship.
We are available to help you and your partner discuss what repairing your relationship would look like or what to consider if separation is the right path for you.
Our practice offers in-person appointments in Charlotte, NC, and Carefree, AZ. We also have virtual sessions available for those who live in Arizona, Florida, North Carolina, South Carolina, or Texas. Contact us to get started.