is mediation right for your case?

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People often associate the divorce process with heated arguments that lead to litigation. While this assumption is grounded on a long history of uncomfortable divorces, it is certainly not the only way to dissolve a marriage. In recent years, more and more divorcés are choosing to use divorce mediation instead.

Mediation is a legal process in which the parties in a divorce or another family law dispute decide to work together with a neutral party – the mediator – to overcome conflict and reach an agreement in their case. While most mediations involve three people – two spouses and one mediator – it is not uncommon for each spouse to also hire a separate family law attorney to speak on their behalf during mediation, or to review and prepare documents that will be used in the mediation. If there are no additional attorneys throughout the mediation process, it can be expected that the mediator will help prepare all paperwork as necessary for each spouse.

When is Mediation Not a Good Option?

Mediation is built upon the groundwork principles of cooperation and fairness. If these concepts cannot be maintained, then mediation is not the right choice. Generally, if one party is fearful of the other, such as in cases where there is a history of domestic violence, or if there is a power imbalance, such as in cases where one spouse made 100% of the income, mediation should not be chosen.

It is important that each party feels safe stating their desires for the case, and that no one feels pressured or forced into reaching an agreement. In cases where there has been aggression or violence, it may be difficult, or impossible, for one party to feel comfortable advocating for themselves or disagreeing with the other party.

When Does Mediation Work Best?

It bears repeating that mediation requires cooperation to be successful. Indeed, specific forms of cooperation will be necessary.

In your divorce mediation, you will need to cooperate regarding and be open about:

  • Finances: If both parties are willing to make all the required financial disclosures in a divorce, and trust that nothing is being hidden, then divorce mediation will be off to a good start. Keep in mind that certain financial disclosures are required by law, whether you go through mediation or not. However, if you are concerned that the other party will conceal assets or debts, mediation will not be effective, as there are no mechanisms to force the concealing party to provide information. In order to that, you would need to go through court and get a petition or motion approved.
  • Solutions: It is not necessary for you and the other party in mediation to be totally in agreement about everything, or even to get along cheerfully. But you both do need to be in an emotional and psychological state in which sitting in the same room for a few hours, listening to each other, evaluating proposals fairly, and openly sharing counter-suggestions is possible. For some people, the emotions related to a divorce may make it difficult to focus on mediation and use this process appropriately.
  • Compromise: Realistically, you and your spouse, or whomever else is in your mediation process, are not going to agree on any and all issues of your divorce. If that was the case, you would probably just want to file for an uncontested divorce. With this in mind, realize that it is unlikely that everyone will end up with everything they want, and to the exact specifications they imagined. Compromise is a significant portion of mediation that both sides must acknowledge and practice. Without it, the mediation will stall and fail eventually.

Deciding to Use Mediation or Not

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