Divorce mediation

Divorce mediation is very common in the Netherlands. Mediation offers spouses looking for a divorce the opportunity to reach a negotiated divorce settlement without going to court. For parents, it also offers the opportunity to talk in a neutral setting about the future of their children.

How does mediation work?

Each mediation starts with the willingness by both parties to engage with each other and sit around the same table. Parties can either agree mediation beforehand or be referred there by the courts during a divorce case. It is now common practice for Dutch courts to promote alternative dispute resolution during divorce cases, especially if children are involved. The reasoning is that most court decisions are ‘all or nothing’ and can lead to even more court cases being initiated by the losing party. By using mediation parties can come to a mutually agreeable and lasting settlement. In some mediation processes the children are also actively involved in order to move forward with solutions that all of the family are comfortable with.

Confidentiality

Mediation makes it much easier to communicate without fear of repercussions, as discussions may not be used in a court of law at a later date. Parties must sign a confidentiality agreement (NDA) before commencing mediation.

Mediation stages

Once a mediator has been appointed, talks can begin. Usually the first meeting is not about the dispute itself, but about how the mediation process will proceed. Parties meet the mediator either together or separately so that the mediator can gather information for the further process.

In most cases, the mediator will commence by talking about how the dispute came about and leave room for both parties to tell their side of the story. However, this is not a counselling session. The objective of the mediator is to see where the heart of the problem lies and what the joint and individual interests are.

This process usually gives the mediator a clear picture of the dispute and what parties’ positions and interests are. If not, then the mediator may take some more time to uncover what the root of the problem actually is.

Thereafter, the mediator will often focus each session on one or two subjects in order to help parties resolve their conflicts. For example, one session may focus on future care of the children and another on the financial settlement of the divorce. When parties reach agreement, the mediator will draft a binding agreement.

Parties interests during mediation

Parties interests and concerns are the main tool used to mediate successfully. The mediator helps parties to identify these interests. There may not only be conflicting interests, but also common interests. For example, parties do agree on the future care of their children, but not about child support. Once the conflicting and common interests are clear to both parties, the way forward will often become evident and an agreement will follow. Some interests are more important than others and may be crossed off or traded. Or parties may find a compromise which harms neither position. The main thing is that parties themselves come to an agreement that is mutually beneficial and leads to a final solution.

What can be agreed?

That is really up to the parties themselves. Typically, topics that will cross the table during divorce mediation are:

Once an agreement is reached, a binding contract, the divorce agreement, is prepared by the mediator. Parties can then file for a joint divorce. The divorce will be granted by the courts within a few weeks.

The advantages of divorce mediation

The advantages of mediation are not just financial. Our experience is that parties on a settlement together are less likely to have future conflicts regarding what has been agreed. Coming to an amicable settlement at an early stage is always beneficial for any children involved in the divorce.

At Dutch Divorce Lawyer, Emma Davidson is a bilingual independent mediator mainly specialising in family mediation with regards to children and parenting disputes. Mediation is not only a useful tool for the divorce itself, but also if disputes later arise about the parenting plan or care of the children. We discuss common parenting disputes in our blog.

When is mediation not for you?

Engaging a mediator implies that you have a dispute that you want to solve. If you already agree about the divorce and its consequences, then we recommend a fast-track divorce procedure.

Mediation is not suitable in most situations where recent domestic violence has occurred or one of the spouses is abusively controlling in the home situation. We then recommend that parties engage their own lawyer to defend their interests.

Please contact us if you want to explore the possibilities of mediaton further.