Divorce Mediation: Is it For You?

A very nice woman came to see me this afternoon about a divorce. Her name is not Sally, but I will call her that to protect her privacy. Sally has been married for a long time, and has children with her husband. They have a house, Sally’s husband has a good, solid job, and Sally is going back to school to further her education. But, she has decided to end her marriage and had questions about the process of getting divorced.

Sally’s husband wants to handle their divorce through a mediator, but she is not sold on the idea. So, she had a number of questions for me about the mediation process, as well as the pros and cons of using a mediator versus hiring her own attorney and going to court.

I hope I answered Sally’s questions and gave her some useful information to take home and consider as she makes her way toward the end of her marriage. After talking with Sally, I decided to share some of my thoughts about the limits of divorce mediation.

1.         Divorce Mediation Requires Both Spouses to Want to be in the Room: For a divorce mediation to have any chance of working, both you and your spouse must want to be in mediation. The whole idea of divorce mediation is that the two of you agreed to resolve your differences outside of court. So, that means you and your soon to be ex-spouse must accept that you are getting divorced, and that mediation is the best way to end the marriage. Often, however, one of you wants the divorce more than the other, and one of you is not willing to take steps to end the marriage (such as mediation). Or, one of you wants mediation and the other does not. These differences usually come out during a mediation session, and only after you have spent time and money in the mediation process.

2.         The Goal of a Divorce Mediation is a Deal, and the Mediator Usually Doesn’t Care What it is:  Most people do not understand that a mediator’s job is to get them to agree to something, whatever it is. Their goal is agreement and harmony, not fairness. That means that you can, and often do, agree to terms in their divorce that are not fair to you, your spouse, or your children, because you or your spouse do not have good legal advice regarding your rights or obligations. These types of unbalanced agreements will often result in one of you having to go to Court to deal with the unfairness contained in your carefully negotiated settlement agreement. Sometimes, the agreement cannot be changed, and you may be locked in to some very harsh or unfavorable terms. The solution to this problem is to have a good divorce lawyer advising you during the mediation. But frankly, you wouldn’t usually think of this as an option. After all, the whole point of going through mediation is to avoid having to hire a divorce lawyer in the first place!

3.         A Mediator Will Not Help You Convince Your Spouse to See Things Your Way: The role of a mediator is to help you and your spouse reach an agreement to divorce. To do that properly, a mediator cannot take a side or appear to take a side. If either you or your spouse  think the mediator is favoring one of you, the other will feel resentful or angry and is more likely to refuse to complete the mediation or come back for another session. If you are thinking that a mediator will help you show your spouse the error of his or her ways, you are going to be disappointed with the mediation process.

So, while mediation is a very helpful way for some couples to end their marriages, it is not for everyone. You should carefully consider all of the pros and cons of beginning a divorce mediation.