Choosing Mediation: A Collaborative Approach to Divorce

Some Connecticut couples opt for mediation to resolve their divorce. This means they decide to retain a neutral mediator, typically an experienced divorce lawyer trained in mediation, to guide their conversation about the things they need to decide in their divorce.

These decisions include how parenting would work, child support, alimony, and property division. They choose mediation to resolve those issues. A mediator doesn't make decisions for them; the mediator helps them reach decisions on their own. After the mediation, they bring what they agreed upon to their independent attorneys to ensure that it meets all legal requirements, and a Connecticut judge will accept it.?

The agreement is then filed with the court so that the court can review it and order their marriage dissolved, effectively ordering them unmarried. Mediation is basically a process, a way to resolve your divorce before you go to court so that everything is already agreed upon by the time you go to court.

One advantage of mediation is that both people decide to stay out of court as much as possible. They choose to hire someone to help them reach decisions (the mediator) instead of having a judge decide for them. People often wonder whether every divorce in Connecticut has a mediation component. This is a very reasonable question because, in many states, every divorce—even litigated divorces—has a stage where the parties are required to go through a mediation process.

It works a little differently in Connecticut. In most cases, when people talk about mediating their divorce, they mean that the two spouses have decided to go to a mediator to help them reach decisions on the issues that need to be resolved in a divorce, like property division, alimony, and parenting plans if they have children. The term “divorce mediation,” when used in Connecticut, typically refers to that process.

That said, many people also use mediation when they are far along in a litigated divorce and have not reached an agreement on all of the issues. In such cases, they file a litigated divorce and proceed. The lawyers negotiate, and there are likely hearings along the way to resolve certain issues. At a certain point, the lawyers, in consultation with their clients, may suggest going to a mediator mid-litigation to try to resolve as many issues as possible without having to proceed to trial.

Very often, the mediator used in the middle of a litigated divorce tends to be a retired judge. This way, you are getting the perspective of someone who used to sit on Connecticut's divorce and family court bench to help resolve the outstanding issues.

There are two major ways to mediate in Connecticut. The first, and by far the most common, is to retain a private mediator, commonly an experienced divorce lawyer trained in mediation, to help you reach decisions on your own. This is the most common version of mediation. The second type of mediation in Connecticut, which is less common, is in a fully litigated divorce. The parties opt for mediation as they approach trial to see if a mediator can help them resolve things on their own and avoid the need to go forward with a trial.

When you and your spouse or partner choose mediation to resolve the issues in your divorce, you might wonder how information is exchanged. How does mediation handle this part of the process compared to a litigated divorce, where there would probably be a much more formal discovery process? In mediation, you wouldn't see things like depositions or interrogatories. However, you need to be open to the full and open exchange of information. It is less formal—you probably won't be in a room with a court reporter—but the parties need to openly exchange documents to ensure they are making the best decisions.

The mediator also reviews these documents to give recommendations on structuring the divorce. While the mediator does not provide legal advice or represent either spouse, they ensure that all necessary topics are addressed in the final divorce settlement.

For example, the spouses need to exchange information about assets and liabilities so the mediator can ensure that their agreement addresses all necessary elements.

If you and your spouse opt for mediation instead of litigation, here is what you should know about the process. First, you will likely meet with your mediator and complete the homework your mediator suggests. The goal is to agree on all issues in your divorce before you even file for divorce. In addition to the mediator, each spouse typically hires a mediation review counsel—an attorney in a limited role—to ensure the agreements reached are in their best interest.

At Freed Marcroft, we serve in both roles for different clients. Sometimes, we act as the mediator helping both parties reach agreements. Other times, we serve as mediation review counsel, advising one client and ensuring the agreements align with their future goals.

The mediation process generally unfolds as follows: You and your spouse decide to mediate and retain a neutral mediator. Each of you hires your own mediation review counsel for legal advice. You exchange documents and participate in a series of meetings with the mediator. Review counsel typically does not attend these meetings; it is often just you, your spouse, and the mediator. Once an agreement is reached and reviewed by both parties' counsel, it is filed with the court.

The judge reviews the agreement to ensure it aligns with Connecticut's rules and regulations. Assuming it does, the judge finalizes the divorce. In most cases, you do not need to appear in court for a final hearing, as the divorce is finalized on paper. However, in some cases, you may need to appear briefly to answer the judge's questions.

Understanding your goals is critical whether you choose mediation, collaborative divorce, or a traditional litigated divorce. Each process has its advantages, and the lawyers at Freed Marcroft can guide you in selecting the best path for your circumstances. If you have questions, please reach out—we are here to help.