Divorce mediation: how it works and what you can settle

In divorce mediation you and your former partner negotiate your own settlement with one impartial mediator, instead of each instructing a lawyer to negotiate for you. The outcome is set down in a divorce covenant (echtscheidingsconvenant) and, if you have minor children, a parenting plan (ouderschapsplan); a lawyer then files these with the court, because a divorce petition in the Netherlands can only be filed by a lawyer.

The mediator does not decide anything and does not advise either of you on what is best. The mediator structures the conversation, makes sure the necessary information is on the table and records what you agree. Mediation is not suitable where there has been coercion or domestic violence, or where one of you cannot negotiate safely.

What does mediation settle?

Mediation settles the same subjects a court would otherwise decide. These are the children’s principal residence and the care and contact arrangement, child and spousal maintenance, the division of assets and debts, the family home and pension equalisation under the Pension Rights Equalisation (Divorce) Act (Wet verevening pensioenrechten bij scheiding).

Under Article 815 of the Dutch Code of Civil Procedure (Rv), a divorce petition involving minor children must include a parenting plan. Mediation is often where that plan is written. You can also agree things a court would not impose: how you will communicate, how often you will review the arrangement and how to deal with new partners. Those agreements often keep the arrangement working.

What makes mediation work?

Mediation works when there is full financial disclosure and a rough balance between you. Without a complete picture, the agreement is unfair and vulnerable: under Article 1:401 of the Dutch Civil Code (BW), the court can change a maintenance agreement that was based on incorrect or incomplete information.

Where one of you has no insight into the finances, or where there is a serious imbalance of power, mediation is not appropriate. A good mediator says so at the intake meeting rather than starting and failing. In that case each of you instructs your own lawyer.

What does it cost and how long does it take?

Mediation is usually cheaper than two lawyers negotiating, because the work is done once rather than twice. Several sessions over a few weeks is a common pattern. If your income and assets are below the limits of the Legal Aid Board (Raad voor Rechtsbijstand), it can subsidise a registered mediator; you then pay an income-related personal contribution (eigen bijdrage).

Keep in mind that the Legal Aid Board can reclaim the subsidy if the divorce leaves you with money, for example from the sale of the house (resultaatbeoordeling). The court procedure after an agreed outcome is short: an uncontested joint petition is usually decided on the papers, without a hearing.

What are the limits of what you agree?

Child maintenance can always be reviewed by the court under Article 1:401 BW when circumstances change, whatever you agreed. A clause excluding variation only works for spousal maintenance, not for child maintenance.

For spousal maintenance you can agree a non-variation clause (niet-wijzigingsbeding) under Article 1:159 BW. It must be explicit and you must understand its consequences: the court will only set it aside under a strict test in Article 1:159(3) BW, when circumstances have changed so drastically that holding you to it would be unacceptable. Agreements that grossly disregard the statutory standards can also be changed under Article 1:401 BW.

Can mediation still work once the relationship has broken down?

Yes, as long as both of you can negotiate safely. Hostility alone does not rule it out; helping people who no longer talk to each other is what a mediator is for, and settlements are regularly reached between people who arrived convinced it was impossible. What rules it out is domestic violence, coercion or a refusal to disclose the finances.

What should you check before you sign the covenant?

• That both of you have seen bank statements, tax returns, pension overviews and mortgage documents.
• That the child maintenance amount follows the Tremanormen (the court’s calculation guidelines) or that you know why it deviates.
• Whether the covenant contains a non-variation clause for spousal maintenance and what it means for you if your income changes.
• How pension equalisation is arranged and who notifies the pension provider of the divorce.
• Who keeps the house, who takes over the mortgage and whether the bank has agreed to release the other partner.
• That the parenting plan covers residence, care, information and the costs of the children.

What can we do for you with divorce mediation?

We act as mediator for both of you or as adviser to one of you alongside a mediation, and at the first conversation we tell you which fits; see also our divorce lawyer page.

• We guide the mediation sessions and record your agreements in a covenant and parenting plan.
• We review a draft covenant prepared by another mediator before you sign it.
• We calculate child and spousal maintenance according to the Tremanormen.
• We check how the pension equalisation and the division of the home are arranged.
• We file the joint divorce petition with the district court.

Summary

• In mediation you agree your own settlement with an impartial mediator; the result is a covenant and, with minor children, a parenting plan (Article 815 Rv).
• It works only with full financial disclosure and a rough balance between you; with coercion or abuse it is not the right route.
• It is usually cheaper and faster than two lawyers negotiating; the Legal Aid Board can subsidise a registered mediator.
• Child maintenance can always be reviewed by the court; a non-variation clause for spousal maintenance (Article 1:159 BW) binds strictly.
• Read more on how long a divorce takes.

Frequently asked questions