What to Consider Before Opting to Mediate Divorce
While divorce mediation has significant benefits, it is not appropriate for every situation. There are numerous factors that must be considered before deciding to mediate divorce or opt for traditional litigation. It is important that you and your spouse both understand what mediation is and that neither party is being pressured into it.
Waste of Time and Money
While mediation can be economical and time saving in many instances, it is not always so. If both parties are willing to cooperate with the process the outcome will likely be positive; however, if one or both spouses do not intend to be honest and open to compromise, it is likely to fail. Failed mediation means that litigated divorce is the next step. Both spouses must find their own attorneys (the mediation attorney cannot represent either party) and pay attorney and court fees associated with a new divorce proceeding. Information revealed during mediation may not be used in court, which means the discovery process must generally begin from the beginning. In addition, both parties are left with the bill from mediation and a loss of time.
The dynamics of one failing marriage are never identical to another. Couples who plan to mediate divorce must consider their current and past personal relationship, and each spouse must consider their own emotions. While one couple may be amicable, agree to one another’s wishes completely, and have a minimal amount of negative, resentful, or sentimental emotion surrounding the divorce, another couple may find themselves too emotionally involved and angry to sit together through hours of mediation. Gauging where your relationship falls between these two ends of the spectrum will help you and your partner decide if mediation is right for you.
If one spouse is more articulate, has all the financial resources, or abusive to the other it can surely be detrimental to the divorce mediation process. For instance, in a marriage with a history of domestic violence mediation is likely not an appropriate choice as the victim may feel pressured or intimidated during sessions. Spouses who are victims, have fewer resources, or are inarticulate will usually have a more difficult time asserting themselves during mediation.
The formality of the court in litigated divorce can be beneficial when it comes to power imbalances, truth, fairness, and evidence. Attorneys are able to use the court to have witnesses testify or produce evidence, while mediators cannot force the truth to be given by all parties. Court procedures also help ensure that both parties are treated fairly, whereas mediation is less able to help protect a party from an aggressive or intimidating spouse. This can play a crucial role in making sure the less aggressive spouse does not unfairly settle and lose what is rightfully theirs.
No Legal Advice
Even if a mediator is an attorney, they are not allowed to provide either side with legal advice. They are to act as a neutral party and are unable to speak to the parties about the divorce outside of mediation sessions.
Choosing to mediate divorce is a great alternative to litigation but it is not recommended in all cases. Deciding whether to mediate or litigate may be decided early on, as early as the contemplation of divorce. On the other hand, you may decide to mediate at any time during the litigation process. For instance, once a complaint is filed both parties could inform their attorneys that they wish to mediate. Their attorneys could be present at the mediation sessions or they may mediate without attorneys. This option allows for the parties the benefit of being provided with legal advise during the mediation process through their individual attorneys.
Each case is significantly unique and an experienced mediator can help determine if mediation is appropriate. At Armour Law Firm we recognize the importance of serving these diverse needs and provide mediation, collaborative divorce and traditional litigated divorce services.