Publication : Brochures
Divorce and Custody Mediation
The Maryland State Bar Association’s Public
Awareness Committee has prepared this information with assistance from the
Howard County Mentor Program. It is intended to inform the public and not
serve as legal advice.
What is Mediation?
Mediation is an alternative method of dispute
resolution available to parties undergoing separation or divorce. The primary
method of dispute resolution has been litigation, in which the separating
or divorcing parties are adversaries and a judge or master makes the decisions
for the parties. Mediation is different because the parties work together
to decide between themselves what is best for them and their children. The
mediator is not a judge, but helps the parties decide on their own how to
resolve their differences.
What Kinds of Mediation are Available?
The court may order mediation or it may be voluntary.
Court-ordered mediation takes place when the case has already reached court,
and is governed by specific rules of the court. Voluntary mediation is elected
by the parties on their own at some point prior, during or after the case
goes to court. Voluntary mediation is not restricted by rules of the court,
but by the wishes of the parties involved and their mediator’s guidance.
In court-ordered mediation, the parties may only
discuss custody and visitation, unless they agree to discuss other matters.
Also, there is a limit to how many mediation sessions may be ordered by the
court. For example, a judge may only order two sessions, and then later order
two more sessions if deemed necessary by the judge and mediator. Mediation
may continue for more sessions only if the parties both agree to more sessions.
In voluntary mediation, the parties may work out any and all issues pertaining
to themselves and their children, including issues of support, and property
destruction, in as much time as needed.
What are the Benefits of Mediation?
Through mediation, the parties are directly involved
in making decisions for and about themselves and their children, unlike when
parties take the case to court. In court, a judge or master decides the outcome
for the parties according to the law and facts presented. Since judges are
restricted to what the law allows them to do, both parties may sometimes
find themselves unhappy with the judge’s decision. When working through
mediation rather than the court, the ability for the parties to work through
their problems without being bound by rules of the court allows more freedom
to satisfy everyone concerned. The parties may also be more inclined to abide
by an agreement that they have reached together, rather than terms, which
have been forced upon them, by the court.
Sometimes, people try to solve future problems
by the pattern set when they first separated or divorced. If the parties
litigated their differences initially, they are more likely to solve additional
problems in the relationship through litigation. But if the parties resolve
their differences through mediation and cooperation from the very beginning,
they will most likely cooperate and resolve any other issues that arise.
How Do the Parties Begin Mediation?
Court-ordered mediation begins when a judge orders
it. The mediator for the parties is appointed by the court from a list of
qualified mediators. For voluntary mediation, the parties begin by locating
a mediator and making an appointment.
Selecting a Mediator
A mediator is a professional who is trained in
helping people resolve disputes. When selecting a mediator, choose someone
- knowledgeable of law or social work, and preferably
holds a degree in one of these disciplines;
- trained in mediation through a certified program;
Attorneys, mental health professionals and other
divorcing couples may be good sources to tap when looking for a qualified
Is an Attorney Necessary in Mediation?
In court-ordered mediation, each party must be
represented by an attorney. In voluntary mediation, each party has the right
to decide whether to be represented by an attorney. However, some private
mediators may request that the parties engage attorneys to represent them
throughout the mediation process.
What will Mediation Cost?
The cost of mediation often depends upon the specific
type of mediation. The court may waive the cost of court-ordered mediation,
or the court may order either party to pay the entire cost of mediation or
order both parties to share the cost. The parties will also bear the cost
of representation by their individual attorneys. In voluntary mediation,
the parties are responsible for mediation expenses themselves. Since there
is no limit on the number of mediation sessions as in court-ordered mediation,
voluntary mediation may result in grater expense to both parties.
Mediation costs are usually based on an hourly
rate or flat fee, depending upon the contract between the parties and the
mediator. Although there is a cost for mediation, it is possible that the
over all cost of the separation or divorce will be less expensive if pursued
through mediation than through litigation.
What Kinds of Issues May be Addressed through
The goal of mediation is reaching a satisfactory
agreement on the topics, which brought the parties to mediation in the first
place. With court-ordered mediation, the topics are restricted to custody
and visitation unless both parties agree to include other issues. The parties
may choose to discuss the children’s living arrangements, the children’s
need to spend quality time with either parent or the parent’s schedules.
In voluntary mediation, any and all topics, which are important to the parties,
are open for discussion. For example, custody and visitation, the disposition
of property, each party’s income and expenses, alimony, child support
and life and health insurance may be discussed.
What Happens After an Agreement Is Reached?
With court-ordered mediation, the mediator must
prepare a written draft of the agreement and send copies of the agreement
to the parties and their attorneys. The agreement may be approved or modified
by the parties. The mediator then submits the agreement to the court for
approval and entry as an order. With voluntary mediation, the private mediator
may prepare a written agreement for the parties to sign or may suggest that
the parties’ attorneys prepare an agreement. Before a private mediation
agreement is signed, each party should review it with his or her attorney.
If corrections or changes are needed and both parties agree, then the changes
may be made. This agreement may take effect immediately and govern the parties
until they decide to divorce. At that time, the agreement may be incorporated
into the divorce decree.
What if an Agreement is Not Reached?
In court-ordered mediation, the case will return
to the court for a decision by the master or judge if the two parties cannot
come to an agreement. The mediator is forbidden to reveal to the judge anything
that the parties discussed during mediation and may not be called as a witness.
If voluntary mediation does not succeed, the parties always have the option
of hiring attorneys and resolving their differences in court.
Is Mediation for Everyone?
The success of court-ordered or voluntary mediation
depends upon the ability of both parties to work together rationally to find
a satisfactory solution to problems arising from divorce and custody disputes.
Since not everyone is able to cooperate in such disputes, the Maryland Legislature
has provided that the court may not order mediation in any case where there
is a genuine threat of physical or sexual abuse of one of the parties or
the parties’ children.
Divorce and Custody
Mediation © 1994, MSBA, Inc.
All rights reserved. No part of this work may be reproduced in any
form without written permission from the Maryland State Bar Association.