Most people have seen a courtroom drama on TV or in the movies, so they have a general sense of what a litigated divorce is all about. Mediation is a bit different, and there are many myths floating around. Here are a few common ones.
Myth 1- Mediation favors a dominant spouse
A good mediator will be skilled at neutralizing a power imbalance between divorcing spouses. Techniques can include enforcing behavioral guidelines, like controlling the topic of conversation and allowing both spouses to fully speak their minds. Spouses may be asked to meet separately with the mediator to discern their priorities. Mediators will involve appropriate additional professionals as necessary, such as accountants and lawyers. That said, a mediation is probably not the place to resolve issues involving abuse or fraud.
Myth 2- Your lawyer cannot protect you in mediation
It is true that a lawyer will typically not be present at a meditation, but lawyers can still have a role. A spouse can consult a lawyer outside of mediation to ensure that the spouse understands his or her rights, and the lawyer can provide some coaching to prepare a client for mediation sessions. More importantly, however, a lawyer can review a final mediated agreement to ensure that it is a fair deal. In fact, this may be preferable to having a lawyer negotiate or litigate a deal because a lawyer will often offer this type of consulting service without a large advance deposit, called a retainer, that is often required before a lawyer will represent someone in a contested divorce.
Myth 3- All lawyers support mediation
Many lawyers actually do not support mediation. Some are expert litigators that simply do not work on cases that are fit for a mediation. Others do not believe that a mediator that works for both spouses can achieve a result better than what a lawyer representing one spouse could achieve. Anyone considering a mediation should be sure to work with a lawyer that is mediation friendly.
Myth 4- The mediator will ensure a fair deal
A judge will make decisions in a contested divorce, but a mediator will not make any decisions. A mediator helps the two spouses make their own decisions. That means the mediator will pinpoint areas of conflict and help work the parties towards common ground. The mediator can try to make sure that one party is not backed into a bad deal by the other party. Ultimately, however, a mediated agreement is a product of each spouse and there will be nobody to save a spouse from an unfair outcome.
Myth 5- Mediation is always better than litigation
Some divorces really are unfit for mediation. If the spouses must divide large, complex assets, like a family business, for example, litigation might be necessary to discern the value of the assets and properly divide them. Courts have a discovery process that allows spouses to find assets their spouse may be hiding. Cases involving abuse or neglect are also not likely to be resolved amicably in mediation. Some states also provide “fault” grounds for divorce where a spouse can essentially be punished monetarily for harm caused to the marriage and that is typically not a part of mediation.