When it comes to dissolving a marriage and providing for the children involved, courts generally prefer that parents reach their own agreement rather than resort to litigation. Mediation is a means toward this end. It allows you to decide the terms of your divorce on your own, rather than have a judge – who doesn't intimately know your family – make orders for you in family court.
Courts rely on various methods of alternative dispute resolution to help spouses resolve family law issues. Mediation is one such method. In mediation, parents meet with a trained third party who helps guide the discussion, occasionally making suggestions so spouses can overcome their differences to find a middle ground that works for the entire family. The mediator doesn't make decisions, and he typically cannot issue orders. Some states, such as Maryland, require that spouses have legal representation during court-ordered mediation, but in others, representation is optional. Sessions are confidential. The mediator generally can't reveal anything you say to another party, including the judge assigned to your case or your spouse's attorney. In some states, including Ohio, you can waive the right to confidentiality.
If you think it might benefit your family, you and your spouse can voluntarily attend mediation. In some states, however, the court will order you to do so, typically to resolve custody matters when they're in dispute. You may also be able to discuss financial issues, however, if both you and your spouse are agreeable to this. If you voluntarily attend mediation with a private mediator, you can usually try to work out an agreement regarding any issues you like.
You may or may not reach an agreement in mediation. If you don't, your case typically goes back to the judge, and he will decide issues for you at trial. If you do reach an agreement, what happens next depends on the procedures in your state. In New Jersey and Maryland, the mediator will typically prepare your agreement in written form. You and your spouse – or your attorneys if counsel represents you – will receive a copy, and you have a short period of time during which to review it and make sure it's what you want and to what you agreed. If it is, you can sign it, and the agreement goes to the court. Otherwise, you can go back to mediation and try to modify the agreement. The final version is typically incorporated into your divorce judgment or decree; a trial is not necessary unless some unresolved issues still remain. In some states, particularly if you and your spouse attend mediation voluntarily, you or your attorneys may be responsible for drawing up your agreement in written form and submitting it to the court.
When your agreement is incorporated into a final decree of divorce, this typically gives family court jurisdiction to enforce it, just as if the judge issued the decree subsequent to a trial. You can also return to the court to modify its terms post-divorce, typically with regard to support or custody. As when a judge decides your terms, you must usually establish that a significant change of circumstances occurred since your divorce was issued.