In divorce mediation the parties negotiate their own settlement with the help of an impartial mediator, instead of each instructing a lawyer to negotiate for them. The mediator does not decide anything and does not advise either party on what is best for them; the mediator structures the conversation, makes sure the necessary information is on the table, and records what is agreed.
Because a divorce petition in the Netherlands must be filed by a lawyer, mediation and the court procedure fit together: what is agreed in mediation is set down in a covenant and, where there are minor children, a parenting plan, and those documents are filed with a joint petition.
What is settled in mediation
The same subjects a court would otherwise decide: where the children have their principal residence and what the care and contact arrangement is, child and spousal maintenance, the division of the assets and debts, what happens to the family home, and pension equalisation. Mediation also allows agreements a court would not impose – how you will communicate, how you will review the arrangement when circumstances change, how to deal with new partners – and those are often the agreements that keep the arrangement working.
What makes it work
Two things. Full financial disclosure, because an agreement reached without a complete picture is both unfair and vulnerable to being set aside later. And a rough balance between the parties: mediation depends on each being able to state and defend their own interests.
Where there is a serious imbalance, where one party has no insight into the finances, or where there has been coercion or abuse, mediation is not appropriate. A good mediator will say so at the intake rather than start and fail.
What it costs and how long it takes
Mediation is usually markedly cheaper than two lawyers negotiating, because the work is done once rather than twice, and it is usually faster: several sessions over a few weeks is a common pattern. Where the parties qualify for subsidised legal aid, mediation is covered by the same scheme.
The court procedure that follows an agreed outcome is short: an uncontested joint petition can be dealt with on the papers.
The limits of what is agreed
Two points are worth knowing before signing. Child maintenance can always be reviewed by the court, whatever the parties agreed, because it concerns the child’s interest rather than only theirs. And a covenant can be set aside where it was concluded on the basis of incorrect or incomplete information – which is another reason for full disclosure at the outset.
Parties can agree that spousal maintenance cannot be varied, but such a clause needs to be explicit and its consequences understood; it binds even where circumstances change dramatically.
Mediation when the relationship has already broken down
Mediation is often dismissed on the ground that the parties can no longer talk to each other. In practice that is what a mediator is for, and it is common for a settlement to be reached between people who arrived convinced it was impossible. What genuinely rules it out is not hostility but an inability to negotiate safely.
Advice
We act both as mediator and as adviser to one party alongside a mediation, and we can say at the first conversation which is appropriate. See also our article on how long a divorce takes. Please contact Law & More.
