Mediation in separation and divorce: when it works

What mediation is and what it is not

In mediation, the two of you negotiate yourselves. A neutral third party structures the conversation, makes sure both of you are heard and records interim results. The mediator decides nothing (§ 1 MediationsG).

The second feature is overlooked more often, and it matters more: the mediator is equally bound to all parties (§ 2 (3) MediationsG). So the mediator cannot tell either of you whether a proposal is good for you; advising one side would be incompatible with the role. The statute draws the conclusion itself. If the parties take part without legal advice, the mediator must advise them to have the final agreement reviewed by outside advisers (§ 2 (6) MediationsG).

If you want to know whether the negotiated result works for you, you need your own lawyer’s assessment, ideally alongside the process and not only at the end.

The process is also confidential by law: the mediator is bound to secrecy (§ 4 MediationsG). Mediators usually bill by the hour, and the two of you share the cost. There is no Verfahrenskostenhilfe (legal aid) for mediation, because no court proceedings are running. What the divorce proceedings themselves cost is set out under Costs.

What it is suited for

Mediation shows its strength where a relationship continues after the marriage ends, which means almost always when there are children. Parenting time, school vacations, a change of school, how the two of you will talk to each other from now on: for these questions, a court decision is a blunt tool.

It can also work for untangling your finances, as long as the figures are not in dispute. Who stays in the apartment, how the household contents are divided, in what installments an equalization payment is made. Good conditions are:

• Both of you want a solution rather than, above all, to be proved right.
• The financial circumstances are known or can be disclosed.
• There is no marked imbalance in information, negotiating power or language.
• No deadlines are running that need to be secured first.

The last point is the most delicate in practice. Maintenance is owed for the past only from the moment it was requested (§ 1613 BGB). If you mediate for months without first asserting the claim, those months are lost for good. So the order is: secure the start date first, then negotiate calmly. More on this in separation maintenance: who gets how much.

Where it reaches its limits

Mediation assumes that both of you can negotiate as equals. Without that, the process entrenches the imbalance instead of correcting it, and the result looks agreed without being so.

It is therefore unsuitable if one side does not know the financial circumstances and the other does not disclose them. The same applies if one side blocks systematically or uses the process only to gain time, or if one side clearly cannot decide freely toward the other. Then the way forward is representation by a lawyer, and if necessary contested proceedings; see contested divorce.

From agreement to a binding contract

At the end comes a final agreement. It binds the parties as a contract but is not an enforcement order: if someone does not keep to it, it cannot be enforced. Two steps turn it into a result that holds:

• Legal review. Each side has the negotiated result reviewed on their own behalf: for completeness, for fairness and for what was never discussed.
• Form. Arrangements on the Zugewinnausgleich (accrued gains) and the Versorgungsausgleich (pension rights adjustment) must be notarized; without notarization they are void. Alternatively, the agreement can be put on the court record at the divorce hearing.

The usual vehicle for this is the divorce settlement agreement. Child support is made enforceable separately, free of charge at the youth welfare office, before a notary or in court.

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

The route through the court

Even once proceedings are underway, an agreed solution is still on the table. In ancillary matters, the Familiengericht (family court) can order the spouses to attend a free information session (§ 135 FamFG). It covers mediation or another form of out-of-court dispute resolution. Attendance cannot be forced, though: the order is expressly not enforceable by coercive measures.

The court can also refer the case to a conciliation judge, who only mediates and does not decide (§ 36a FamFG). In child-related proceedings, the court works toward an agreement between the parents first in any case (§ 156 FamFG); see parental responsibility and contact.

What comes next

If the two of you largely agree already, the direct route is often the uncontested divorce; it is faster and less expensive than any contested version. What you can settle by contract in advance is shown under marital agreement.

And how agreement shortens the proceedings is worked out in how long does a divorce take?.