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.

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.

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.

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.

A mediator is a professional who is trained in helping people resolve disputes. When selecting a mediator, choose someone who is:

• knowledgeable of law or social work, and preferably holds a degree in one of these disciplines;
• trained in mediation through a certified program; and
• experienced

Attorneys, mental health professionals and other divorcing couples may be good sources to tap when looking for a qualified mediator.

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.

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.

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.

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.

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.

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.
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