What Does a Divorce Mediator Do? | Smith Debnam Narron Drake Saintsing & Myers, LLP

A mediator is a neutral third-party professional who assists parties in negotiating a resolution to their differences. In separation and divorce cases, a divorce mediator assists spouses in resolving issues arising out of marriage, such as child custody, child support, post-separation support, alimony, equitable distribution, and attorney fees. Divorce mediators are usually certified family financial mediators and have completed the intensive training required by the North Carolina Dispute Resolution Commission.

What Is Mediation in Divorce

Mediation in divorce is a way for spouses to resolve their differences on their own terms and without a judge deciding for them. During mediation, parties (and attorneys if represented) meet with a neutral third-party mediator who listens to both sides and tries to find common ground. The mediator does not advocate for one spouse or the other; the mediator’s goal is to help spouses resolve their disputes. While many counties in North Carolina require that parties participate in family financial mediation when a lawsuit is filed, mediation, for the most part, is something that spouses participate in voluntarily.  

What is the Purpose of Mediation

Mediation is designed so that parties have a hand in deciding their fate, so to speak. Mediation is a forum where spouses can resolve all legal issues arising from their marriage without a judge deciding. A neutral third-party mediator helps spouses bridge the gap between their respective positions.

Do Both Parties Have to Agree in Mediation

To fully resolve all issues related to the dissolution of marriage, both parties must reach an agreement (a meeting of the minds) as to settlement terms. However, there is no requirement that you reach an agreement in mediation. The only requirement is that a spouse meaningfully participate in the settlement process.

Can You Back Out of a Mediation Agreement

Once an agreement is reached during mediation, the settlement terms are usually reduced to writing and signed (notarized) by the spouses. The type of document signed during mediation can vary depending on the case. A Memorandum of Mediated Settlement Agreement is sometimes signed once an agreement is reached. A Memorandum of Mediated Settlement Agreement is a short, simple contract that memorializes the terms of settlement; many times, the terms are just bullet points. A more formal and detailed contract, a Separation Agreement and Property Settlement, is drafted later and executed by the spouses. Depending on the spouses and/or the attorneys involved, a formal settlement document such as a Separation Agreement and Property Settlement or Consent Order can be signed at the conclusion of mediation, which fully resolves the case that same day.

Once a Memorandum of Mediated Settlement Agreement or Separation Agreement and Property Settlement is signed/notarized by the parties, it is a valid and binding contract. If a spouse desires to “back out” of a signed agreement, he/she risks breaching the contract. If a Consent Order is signed by the parties but not yet signed by a judge and file stamped with the clerk, a party may withdraw their consent; however, that could lead to negative consequences. Once a Consent Order is signed by the judge and file stamped with the clerk, a spouse cannot “back out.”

How to Negotiate in Divorce Mediation

Mediation in divorce cases is a great way to resolve issues related to separation and divorce. Mediation can be hard and requires spouses to compromise to resolve their differences. I have heard people say that the sign of a good settlement is when both parties feel they have lost or received a bad outcome. This indicates that both parties were compromising equally and giving up certain things. The beauty of mediation is that spouses are free to explore many different ways of resolving their case without the threat of these compromises being brought up in court. If you and your spouse do not resolve issues in mediation and must have a court hearing, neither one of you can discuss settlement offers made during mediation. Mediation allows spouses the freedom to take many different positions to get the case settled outside of court.

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