Mediation in separation and divorce: when it carries

What mediation is and what it is not

In mediation the parties negotiate themselves. A neutral third party structures the conversation, makes sure both are heard and records interim results. They decide nothing (§ 1 MediationsG).

The second characteristic is overlooked more often and is the more important one: the mediator is equally committed to all parties (§ 2 (3) MediationsG). They therefore cannot tell anyone whether a proposal happens to be favourable for them; one-sided advice would be incompatible with their role. The statute itself draws the consequence from that: where the parties take part without expert advice, the mediator has to point out to them that the final agreement should be checked by external advisers (§ 2 (6) MediationsG).

Anyone who wants to know whether the negotiated result carries for them therefore needs an assessment from their own lawyer, ideally alongside the process and not only at the end.

The procedure is confidential by operation of law, incidentally: the mediator is under a duty of secrecy (§ 4 MediationsG).

What it is suited to

Mediation plays to its strengths where a relationship continues although the marriage ends, that is almost always where there are children. Periods of care, holiday arrangements, a change of school, the question of how you communicate in future: those are subjects for which a court order is a crude tool.

It can carry the economic disentanglement as well, as long as the figures are undisputed: who stays in the home, how the household goods are divided, in what instalments an equalization claim is paid. Good conditions are:

• Both want a solution and are not primarily out to be proved right.
• The financial circumstances are open or can be disclosed.
• There is no marked imbalance in information, negotiating power or language.
• No deadlines are running that have to be secured first.

The last point is the most delicate in practice. Maintenance exists retroactively only from the moment it is demanded (§ 1613 BGB); anyone who mediates for months without having asserted the claim beforehand loses those months for good. The order is therefore: first secure the moment, then negotiate in peace. On that, separation maintenance: who gets how much.

Where it reaches its limits

Mediation presupposes that both can negotiate on an equal footing. Where that condition is missing, the procedure entrenches the imbalance instead of evening it out, and the result looks like agreement without being it.

It is therefore unsuitable where one side does not know the financial circumstances and the other does not disclose them, where one side systematically blocks or uses the procedure only to gain time, or where one side recognizably cannot decide freely in relation to the other. The route then runs through representation by a lawyer, if need be into contested proceedings; see contested divorce.

From agreement to an effective contract

At the end stands a final agreement. It binds the participants contractually but is not an enforceable record: nothing can be enforced from it where somebody does not keep to it. Two steps turn it into a robust result:

• Legal examination. Each side has the negotiated result checked for itself: for completeness, for appropriateness and for what was not discussed at all.
• Form. Arrangements on the equalization of accrued gains and on the pension rights adjustment must be recorded by a notary; without that recording they are void. Alternatively the agreement can be recorded by the court at the divorce hearing.

The usual vessel for that is the divorce settlement agreement. Child maintenance is recorded separately alongside it, free of charge at the youth welfare office, at a notary or at court.

And regardless of all that, one thing stays: only a lawyer can file the divorce application (§ 114 FamFG). Mediation shortens the proceedings, it does not replace them; on that, divorce without a lawyer, or is one enough for both?.

The route through the court

Even while proceedings are running, the solution by agreement is not off the table. In ancillary matters the family court can order the spouses to take part in a free information session about mediation or another form of out-of-court conflict resolution (§ 135 FamFG); participation cannot be forced, though, and the order is expressly not enforceable by coercive measures.

Alongside that, the court can refer the matter to a conciliation judge who mediates only and does not decide (§ 36a FamFG). In children’s matters the court works towards an agreement between the parents first in any case (§ 156 FamFG); on that, custody & contact rights.

What comes next

Where you largely agree anyway, the direct route is often the amicable divorce; it is faster and cheaper than any contested variant. What can be settled by contract in advance is shown by the prenuptial agreement.

And how agreement shortens the duration of the proceedings is calculated by how long does a divorce take?.

Legal notice: This article is provided for general information and does not replace legal advice in an individual case. Any laws, deadlines and amounts mentioned reflect the state of affairs at the time of publication and may change. A binding assessment requires a personal consultation.