Divorce mediation is a type of alternative dispute resolution; couples who choose to participate can sort out their family problems without going to court. In mediation, the parties control which issues they discuss. If a couple prefers to discuss a separation, rather than divorce, a divorce mediator can provide them with the appropriate mediation services.
Types of Separation
Depending on your state, the term "separation" can have different meanings. In some states, a married couple can get a legal separation, which is a formal legal status. In order to go through the court process required to become legally separated, you have to sort out assets, custody and support. You will remain married, but some benefits of marriage, such as spousal health insurance, may not be available after a legal separation. Other states do not offer the option of legal separation. In these states, a couple can still decide to separate and agree on what to do about assets, custody and support during the separation; it is just not a formal legal status like legal separation.
Some couples choose to separate as a trial step when contemplating divorce. Others find they can no longer live together, but do not wish to divorce in deference to their religious beliefs. There may also be financial reasons to separate, but remain married, such as income tax, military or health insurance benefits. Some couples stay married for a period of time to reach the 10 years of marriage needed for one spouse to claim Social Security benefits against the other's work record.
Mediation is a helpful tool in any of these scenarios; a separating couple needs to decide how to go forward financially and how to restructure the family. Mediation can only get started if both parties agree to participate. The mediator's job is to help the parties talk through the tough issues and sort out their own resolution to their problems. Mediation has big advantages for separating parties: it is available even when court processes are not; it is private and less expensive than litigation and it allows for creative solutions.
A mediator can't give legal advice, but can give legal information. The issues in separation are very similar to those in divorce, so when looking for a mediator, consider the mediator's knowledge of family law and divorce. Investigate the mediator's reputation, experience, style and fees so you know what you are getting. Personality is also important. If you can, meet with or talk to the mediator before starting the mediation process to assess whether he is a good fit for you.
Reaching a Resolution
If you are able to reach a resolution in mediation, the agreement is written down and signed by the parties.This is often called an agreement or memorandum. There can be problems with enforcement of the memorandum. Your mediator may tell you that the document is meant only to outline the general terms and that you should still have a more formal settlement contract prepared. A settlement contract is your agreement written in legal terms and in accordance with the laws of your state for marital contracts.