Your marriage is ending, and you plan to file for divorce. However, you might be able to avoid a litigated outcome by pursuing mediation. This option provides people with a more private, less expensive and less time-consuming way to separate assets, plan for future financial needs and negotiate terms for child custody and visitation. In fact, Minnesota state law generally mandates that you attempt Alternative Dispute Resolution (ADR) prior to resolving the divorce through the courts.
Per Minnesota Statute 518.619, with respect to handling custody and/or visitation matters, “The purpose of the mediation proceeding is to reduce acrimony which may exist between the parties and to develop an agreement that is supportive of the child’s best interests. The mediator shall use best efforts to effect a settlement of the custody or parenting time dispute, but shall have no coercive authority.”
Since mediation is not binding, a mediator cannot force you or your ex to agree to any terms. The process is also confidential, and in general nothing you say during the process can be used against you. A qualified Minnesota family law attorney can advise you about how to offer reasonable requests and take strong but appropriate negotiating positions.
Be advised that mediation succeeds when the parties play fair and approach the process in good faith. If you inappropriately pressure the other party or look to “score points,” the process will probably fail. You do not need to concede every point, but you should be willing to cooperate.
You cannot finalize your divorce during mediation; instead, you create a formalized, written agreement that you and your soon-to-be ex sign. The court needs to approve this agreement, and it then has the authority to enforce its terms.
When Mediation Isn’t Needed
The process is not always appropriate. For instance, what if your spouse cannot be trusted in negotiations because he or she lied in the past, broke agreements or engaged in other wrongdoing? What if your spouse left the state or the country? What if he or she is in jail or in a mental institution?
The following quote from an article in The Guardian is worth considering: “There are cases where mediation simply cannot work. The proposals acknowledge this to some extent – providing exemptions in circumstances of domestic violence or child protection – in recognition of the fact that parties who have experienced abuse cannot be expected to sit around a table and reach a constructive out-of-court result.
But there are many other circumstances that fall short of this extreme, where mediation may also not be appropriate – when there is a significant power imbalance in the couple’s relationship, for example, or where complex legal issues such as the validity of a prenuptial agreement arise. In these cases, forcing a couple to mediate may simply provide more ammunition for what is bound to be a protracted legal battle.”