Mediation is a process for two spouses to mutually find agreement on the terms of their divorce. Instead of a daunting courtroom battle over the couple’s property and children, the couple can come to a private settlement and send a lawyer to file the necessary documents in court. Mediation has its limitations, however. It is most likely to be successful if the following items are true.
The decision to divorce is mutual
A divorce mediation is not couples therapy. It is a process generally reserved for two spouses that agree that divorce is the best path forward for their situation. A mediation may be unsuccessful if one spouse harbors a secret plan to reconcile the marriage. That spouse may be uncooperative or take steps to sabotage the mediation. If one spouse is seeking to force a divorce upon the other spouse, a traditional contested divorce may be the best path.
You want to stay on good terms with your spouse
Mediation requires each spouse to openly discuss their desires so a mutually-beneficial agreement can be reached. Some level of animosity can be resolved by a good mediator, but mediation cannot work without a respectful relationship between the divorcing spouses. Spouses on bad terms may not be able to share their concerns or respect the other spouse’s desires. Moreover, some states have an option for “fault” divorce, which can require the spouse that caused the divorce to pay for their actions in some tangible way. If one spouse wants the other to pay for his or her misdeeds then divorce litigation will likely be necessary.
Physical violence, alcohol, or drug abuse is not an issue in your relationship
Mediation is not a good avenue to resolve situations of abuse or betrayal. It is very difficult to get to a fair agreement between an abuser and their victim. Likewise, a spouse that is suffering from addiction may not be able to commit to the work that a mediated settlement will require.
Mediators have limited power to compel the couple to disclose information with each other, and this can limit the effectiveness of mediation in some circumstances. The discovery process in divorce litigation will allow each spouse to get a full financial picture of assets the other spouse may be hiding.
If one spouse does not trust the other to honestly disclose his or her assets then mediation may be unwise. This is especially true for spouses with complex assets, such as a small business or trust that a mediator may have trouble evaluating.
Nothing can make a divorce more ugly than a custody fight. Mediation requires both parents to talk about what they want for their children. It can allow much more flexible shared-custody agreements, as a court will typically order a cookie-cutter shared-custody plan. A mediator will need to get parents to agree on issues like where the children will live on during the week, where the children will live on the weekends, who will take the children to their extra-curricular activities, and how the child with travel between the parents’ homes. If one parent wants to restrict the other parent’s custody, then the issue is not likely to be resolved successfully in mediation.