Frequently Asked Questions about Mediation in Divorce and Custody

What is mediation?

Mediation is an opportunity for people to talk together with the help of a neutral mediator and make their own decisions on what to do next.

Mediation is private and confidential. There is no agreement unless is is acceptable to both of you.

When is the best time to start mediating?

As soon as you can. In an ongoing unresolved conflict or situation, communication often breaks down, tempers flare, and there are a lot of misunderstandings that further complicate the situation.

Often, people stop talking to each other directly. There is no communication or they rely on family, friends, or their attorneys to pass along messages. Anyone who has ever played the game of ‘telephone’ as a child knows that inevitably the last person does not really know what the first person said when the message is passed on by people in the middle.

So, in addition to intense feelings and negative thoughts, there are a lot of misunderstandings. Go to mediation as soon as you can, before communication breaks down further and before friends and family choose sides.

In many cases, people do not have any other opportunity to talk directly or to begin talking to each other again. You can begin talking about what needs to be decided or what you think you can talk about. You might surprise yourselves at what you ARE able to do.

If you can make the decisions together in mediation, you control what will happen to you in this situation.

Is mediation ever inappropriate?

Yes. If a person feels unsafe, is afraid to speak up or is fearful that s/he or the children will be harmed later if s/he speaks up in mediation, mediation may not be appropriate.

Talk to your attorney and your mediator. See “I’m Afraid or Worried” for more information.

I don’t think mediation will work for us.

Most people DON’T think mediation will work for them. They are skeptical about trying to talk things out one more time. Most don’t trust the other person. They think, “If we were going to be able to talk things out, we would have DONE that already. We’re past that. Communication is worse than ever now. It’s hopeless.”

Skepticism and doubt are common initially. But they don’t predict what will happen in mediation since over 70% of the people who mediate reach agreement on all or most of the issues. Most of them are surprised they can talk things out. And relieved.

How long does mediation take?

The court rule provides for a two hour session. You are not required to stay for the two hours. If you need more than two hours to resolve your matters, you can make arrangements with the mediator. Both parties would have to agree.

You decide what you’ll talk about, when the session is over, whether to come back. In mediation, what happens is up to you.

What does the mediator do?

The mediator helps people have the kind of conversation they would like to have but haven’t been able to have on their own. The mediator does NOT make decisions, give you advice, or make recommendations to a court or any other authority. The mediator gives each person a chance to tell their perspective, share their concerns, be heard, and ask questions. You two will decide what to do next.

What kinds of issues can we discuss and decide in mediation?

You can decide upon anything you are both willing to discuss.

What if we do not come to an agreement?

You can:

  • Go back to another session of mediation
  • Talk together somewhere else if you both want to
  • Have your attorneys talk together and try to reach an agreement that is acceptable to both of you
  • Go to court for a judge’s decision

Do I need an attorney?

It is recommended that you get an attorney, especially if you have minor children, own anything together or have debts.

Why are attorneys recommended?

You know more about your situation than anybody else. On a personal level, you are the experts. However, you are involved in a legal case in the court system. Whether or not you know or understand the law, it will impact your situation. It will affect you.

It is important for you to know the range of what the court might decide on the different issues in your situation and why. It is important for you to know the financial or tax ramifications or consequences of all of your decisions. It is important for you to know any legal consequences to your decisions, so you are not surprised or disappointed later.

If we have attorneys, do they come to mediation?

They are welcome, but most attorneys do not come to mediation. Most choose to meet with you before the first session and in between any later sessions to advise you and prepare you for mediation, so you are informed and ready.

If you want your attorney to be there, let your mediator know. Let the other party know so they can decide whether they also want their attorney with them in mediation.

If we are involved in a court case, can a mediated agreement become part of the court’s decision?

  • Decisions are not final until the judge signs the decree.
  • After mediation, you will have time to think about what you’ve decided and talk with your attorney, family and friends.
  • By rule, parties have 21 days to object to specific provisions.
  • Often people come back to another mediation session to talk and make changes together.

What if we do not have minor children, do not own property together and do not have joint debts?

If you do not have minor children, do not own property together, and do not have joint debts, it may be possible for you to handle your case without an attorney. Go to the following for more information: https://www.iowacourts.gov/for-the-public/court-forms/

What are the advantages of mediation?

  • Generally high success rate:
    • Over 70% of the people reach agreement on some or all issues when mediating divorce or custody cases in this judicial district (the Sixth Judicial District of Iowa).
  • Better results: You make the decisions.
  • In mediation you can express all your opinions about the issues and what you want.
  • You have more control over the outcome – there is only agreement if it is acceptable to both of you.
  • Faster, less time-consuming.
    • You don’t have to wait for a trial date.
    • If you reach an agreement, the mediator will write up the agreement and mail it to you. You will have 21 days to look the agreement over. You are encouraged to think it over, discuss it with family and friends and your attorney before signing. If you have objections to the agreement, you can send them in writing to the mediator. If there are no objections, the agreement will be presented to a judge who will read it and can adopt it as the court’s decision.
  • Mediation may be less expensive, especially if you don’t need to go to court.
    • If you reach agreement on some issues and go to court for decisions on the rest, your costs for going to court will be probably be lower than if the court made all your decisions.
  • Mediation may be less emotionally stressful than going to court.
  • You know best what will work for you and what will make a difference in your situation.
  • Mediation provides an opportunity to talk together – sometimes there are no other opportunities
  • Mediation can result in fewer court hearings in the future.

These advantages are based on research and on what we have observed statistically and anecdotally in this judicial district.