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Mediation or going to court in a Georgia divorce
Summary
Mediation is a meeting where a neutral mediator helps both spouses try to settle some or all of their divorce. The mediator doesn't take sides or decide anything, and any agreement is voluntary.
Many metro Atlanta courts require or order mediation in contested family cases before a hearing, at least when custody is in dispute. If you settle, the agreement is written down and usually becomes part of the final decree. If you don't, the case goes on in court and a judge decides what's left.
What's said in mediation is generally confidential and can't be used later in court.[1]
How mediation works
- The court's ADR (alternative dispute resolution) office assigns a mediator, or the spouses choose one together.
- A session often lasts a few hours. Fulton County, for example, plans for three hours and asks people to allow up to four.
- The mediator may meet with both spouses together, or go back and forth between separate rooms.
- You can settle everything, some issues, or nothing. Whatever you don't settle goes to the judge.
- If you reach an agreement, it's written down and signed. A signed agreement can be binding, so make sure you understand it before you sign.
When mediation often works well
- Both spouses are willing to share their financial information honestly.
- You'd rather decide the details yourselves than leave them to a judge.
- You want to keep costs down. Settling usually costs less and takes less time than a trial.
- You'll be parenting together for years and want to keep things as calm as possible.
When a judge may need to decide
- One spouse won't share financial information, or may be hiding money.
- There are safety concerns, such as family violence.
- One spouse won't negotiate at all.
- There's a legal question only a judge can answer.
Even then, a court may still order mediation for some issues unless screening shows it can't be done safely, and some issues may settle while others go to the judge.
Confidentiality
What's said in mediation is generally privileged, which means it can't be used as evidence later in court.[1] Court mediation programs have similar rules. There are limited exceptions, for example threats of violence[2] or concerns about child abuse.[3] Records or facts that could be used anyway don't become off-limits just because they came up in mediation. A signed settlement agreement generally isn't confidential, and once it's filed with the court it becomes part of the court record.
Bringing a lawyer
A spouse can bring a lawyer to mediation.[4] The mediator can't give either spouse legal advice, so if you go without a lawyer, you can ask one to review an agreement before you sign it.
If there's been family violence
Georgia court mediation programs screen family cases to check whether mediation can be done safely and free from pressure. If you're afraid of your spouse, tell the court's ADR office or your lawyer before mediation is scheduled. If you're in danger, Georgia's statewide domestic violence hotline is 1-800-334-2836 (1-800-33-HAVEN).
What it costs
Court mediation programs often charge a set fee or a set hourly rate. In Fulton County's Family Division each spouse pays $115, and in Clayton County a court-assigned mediator costs at least $240 for the first two hours, split between the spouses. Private mediators set their own rates; Gwinnett's courts say they generally charge $100 to $300 an hour. Some courts can waive the fee for people who can't afford it.
How to prepare
- Gather your financial papers, including your domestic relations financial affidavit if your court requires one.
- Make a list of what you own and owe, with rough values.
- If you have children, sketch the parenting schedule you'd like, including holidays.
- Know what matters most to you, and think of more than one way to get there.
- Plan for the whole session, and arrange childcare so you can focus.
Questions you might ask a lawyer
- Does our court require mediation, and when?
- Should you come to mediation with me, or review the agreement afterward?
- What should I bring, and what should I not agree to on the spot?
- Are there safety reasons mediation might not be right for us?
Common questions
Is mediation required for divorce in Georgia?
It depends on the county. Many metro Atlanta courts require or order mediation in contested family cases before a hearing, at least when custody is in dispute, and judges elsewhere can order it. Uncontested divorces usually don't need it.
Does the mediator decide anything?
No. The mediator is neutral, helps both spouses talk through options, and can't impose a decision or give legal advice. Any agreement is voluntary.
Is divorce mediation confidential in Georgia?
Generally, yes. What's said in mediation can't be used as evidence later in court, with limited exceptions such as threats of violence.[1]
What happens if mediation doesn't work?
The case continues in court, and a judge decides the issues the spouses couldn't settle.
Sources
- ^ O.C.G.A. § 9-17-3, mediation communications are privileged (Justia)
- ^ O.C.G.A. § 9-17-5, when mediation privilege doesn't apply (Justia)
- ^ O.C.G.A. § 9-17-6, limited disclosures by mediators (Justia)
- ^ O.C.G.A. § 9-17-9, bringing a lawyer to mediation (Justia)
- SB 234 (2021), Georgia Uniform Mediation Act, as signed
- Fulton County Superior Court, mediation fact sheet (PDF)
- Clayton County courts, alternative dispute resolution
- Gwinnett County courts, ADR processes
- Fulton County Superior Court ADR Rules, including domestic violence screening (PDF)
- DeKalb County standing order for domestic cases (PDF)
Laws and court rules change. If something here looks out of date, email help@divorce.city.