How To Divorce: How Do I Decide Whether To Mediate?

Wondering if mediation is right for you? Here's what you need to know, from licensed attorney and mediator Alison Patton, who blogs at LemonadeDivorce.com. Have questions? Ask in the comments.

Here's what you need to know about mediation:

1. Many divorce cases are suitable for mediation (even when there is ongoing conflict; even when trust is damaged from an affair).

2. Mediation can involve just one mediator and be low-cost, or can involve outside experts (such as an accountant, a financial advisor, and consulting attorneys). You decide what you need and what you can afford.

3. Other than doing your divorce yourself, mediation is often the least expensive and fastest way to get divorced. It is the most “hands-on” and you control the process. Perhaps for this reason, couples rarely have “mediation regret” -- even in cases where no agreement was reached.

So your real task, when considering mediation, is to check for any compelling reason NOT to mediate -- the “red flags.” If any of these factors exist in your situation, mediation may not be right for you.

The following red flags are likely to result in failed mediation or an agreement you’ll regret:

• There's an imbalance of power. If you can’t advocate for yourself or stand up to your spouse in a negotiation, you know you will “cave” under pressure. (Note that one solution is to have a consulting attorney participate in the mediation, or set the ground rule that you won’t finalize/implement any mediation agreements until your consulting attorney has “signed off.”)

• One or both of you truly doesn’t care what happens to the other person -- or one or both of you is completely unable to understand the other’s needs and perspective.

• There is emotional or physical abuse in the relationship and you fear standing up to your spouse.

• Because of what you know about your spouse’s mental and emotional state, your strong gut instinct is that the mediation will become just another opportunity for drama and emotional attacks, and will therefore be an unproductive forum.

• You have good reason to believe your spouse is about to take or dispose of assets. (In this case, you need immediate legal help from an attorney representing you, not a mediator.)

• Your child is at risk of being taken out of the area or state by the other parent without your permission, or there is any other urgent matter involving your child that reeks of foul play. (Consult an attorney immediately to see whether you need formal restraining orders. You may be able to mediate once the restraints are in place, but again your first stop is your lawyer’s office, not a mediator.)

• You have a serious lack of trust in your spouse or you believe that your spouse lacks goodwill and will try to use mediation to get a legal advantage. For example: You think your spouse is hiding assets or lying and will continue to lie even if confronted in mediation. In this situation, you may need legal tools that cannot be offered in mediation, such as court orders, depositions, formal discovery/disclosure. Another example: You think your spouse will use mediation to pick and choose what he/she wants to resolve first to his/her advantage, but won’t reciprocate when it comes time to resolve the other matters. I’ve seen this happen most frequently when a couple comes in to resolve temporary custody as the first line of business. One parent pushes the other parent in mediation to agree to a certain custody plan “in the name of peace,” appealing to the other parent’s desire to avoid conflict. Then a few months later, after getting what he/she wanted, the parent drops out of mediation and won’t compromise on other matters. The agreeing parent ends up feeling “played” and can get stuck with an undesirable custody and parenting plan.

If one or more of these red flags apply to your case, consult with a reputable divorce mediator or family lawyer before deciding whether to mediate.

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Comments

[TawandaBee]

12:51 PM on 05/11/2012

Mediator styles and practices vary as much as attorneys, and I recommend interviewing both before you choose the right one for you.

Some mediators perform negotiations where the couple is split into separate rooms and the mediator shuttles back and forth carrying information. Though effective when the stakes are high and/or when no children are involved, this form of mediation does little to heal any of the broken places that got the couple there to begin with.

As a mediator with a focus on healing, I keep parties in the same room as much as possible. It is, after all, their divorce. They are the ones making the decisions that will impact their futures.

When children are involved, mediation can start the healing and set the stage for co-parenting, which will continue long after the marriage ends.

Deborah Denson

[Alison Patton]

03:52 PM on 05/17/2012

Ditto to all your comments.

[katieandtom]

05:07 PM on 05/08/2012

yes, mediation can be very "hands on". and if your ex is a controlling pr ick he will love that. dont do it - go through the courts.

[Alison Patton]

04:13 PM on 05/17/2012

I didn't include the "Controlling Pr___" category in my red flag list, but you can assume it's there.

[Johnny3021]

01:34 PM on 05/07/2012

If we call a couple that is in love "Love Birds" does that mean a couple that is mad eachother should be called "Angry Birds"?

[Leond]

05:57 PM on 05/07/2012

It does not.

[Edogg62]

12:47 PM on 05/07/2012

Man... is that a bad choice of stock photography or what? Ha ha ha.

[boydlemon]

10:23 AM on 05/07/2012

Excellent article. Everyone should seriously consider mediation. It sure beats remaining in long, drawn out court battles. Take it from a retired lawyer, three times divorced.

Boyd Lemon-Author of “Eat, Walk, Write: An American Senior’s Year of Adventure in Paris and Tuscany,” "Digging Deep: A Writer Uncovers His Marriages," the author’s journey to understand his role in the destruction of his three marriages and “Unexpected Love and Other Stories. Information, reviews and excerpts: http://www.BoydLemon-Writer.com.
Travel blog: http://boomertravelblog.com.
Retirement blog: http://FulfillingRetirementAdvice.com

[Edogg62]

09:34 AM on 05/07/2012

Mediation is right for just about EVERYONE, sorry. Attorneys have been getting fat off this market for entirely too long, basically selling vengeance to more than willing fools. Folks... attorneys can't get you paybacks or right all the wrongs... the ONLY thing they can get you is a big fat 10k+ tab and the same stuff any mediator would've gotten you for $500. Please. Stop buying parasitic attorneys cars, boat et al.

[Alison Patton]

03:53 PM on 05/17/2012

What about doing your own divorce and consulting with an attorney for advice and help with legal papers? That can work too.

[A William Michael]

05:27 AM on 05/07/2012

Our mediator took my wife's side and was therefore not an impartial judge. Alas, there was no way at that point to pull out of the process. Was it less adversarial than a normal divorce might have been? I have no idea. But the process from beginning to end took more than two years and I still got the short end of the stick. I got remarried eventually to a wonderful woman but I would have to agree with the posters who say that the best advice is not to get married in the first place. Dissolving a marriage, as anyone who has gone through a divorce has found out, is like ending a small business: messy, expensive and ugly, and the love that led to the union in the first place is nowhere in evidence amid all that paperwork and heartache.

[Greg Albright]

10:45 PM on 05/07/2012

I ran into the same issue. Most mediators will have built in gender biases against men in divorce. The way I settled this is I made it clear that she (the mediator) would be included in the eventual discrimination lawsuit against the county (michigan recently passed a gender neutrality in divorce law) and that I would put all her cases on the record, and every case that she ever mediated would have to be re-figgured after I got done with her in court, and she really rapdly changed her tune about the absolute need for alimony and child support in our final settlement.

What men have on their side here, is that there is a long history of extreme bias on divorce negotiations, and everyone invovled in the divorce system is afraid of being the defendent in the lawsuit that overthrows the last thirty years of divorce and child support law. They all know that the lawsuit that sweeps away all the current standards is coming. It is only a matter of time.

[katieandtom]

05:08 PM on 05/08/2012

oh puhlease. somehow i dont think the mediator liked you very much.

[katieandtom]

05:08 PM on 05/08/2012

my ex husband ran right over the mediator and HE controlled the mediation - it takes all kinds.

[Alison Patton]

01:54 PM on 05/17/2012

In all the above situations in this comment chain, it sounds like the mediator wasn't as skilled as he/she should have been. There shouldn't be a bias or even the perception of one. I know there are mediators (and lawyers) who just want to get clients in and out, and will go along with any agreement. I think that's how mediation gets a bad name.

When mediation is being done skillfully, the focus is to reach an agreement that will last and that serves both parties and the family as a larger unit, not just to get anything down on paper so the clients can sign off.

I personally believe professionals in this field have an ethical obligation to point out gross inequities or an imbalance of power. For one thing, an imbalanced agreement often fails later (the weaker party wakes up eventually and gets angry, and if there are kids or future financial obligations involved, the agreement falls apart due to lack on noncompliance). So mediators aren't doing anyone a favor by letting one party run all over the other.

If I see a mediation that feels biased or one of the parties is being railroaded, I call this to the attention of the clients and a consulting attorney can be brought in to help balance the equation.

[UltimateDuck]

11:19 PM on 05/06/2012

its SOOOO easy to solve this problem. DONT GET MARRIED. very simple. why do people think that by signing a contract it will make them FEEL as they promise to feel when they promise to feel it usually decades later. its a womans interest to begin with. women are wishing themselves into these fantasy arrangements and then finding out its still only real life. womens fault in my opinion.

[politicsathome]

10:19 PM on 05/06/2012

For most couples, that pretty much rules out mediation.

And that's unfortunate.

In my experience, divorcing couples spend months and even years arguing out the details of their divorce and once finished, often don't abide by the terms they paid lawyers thousands, perhaps hundreds of thousands, of dollars to produce. The process leaves many couples both financially and emotionally broken.

Anything that can make this process less destructive and more humane would be a step in the right direction.

[Alison Patton]

02:02 PM on 05/17/2012

politicsathome: I don't think the first line of your comment is true. Many couples are great candidates for mediation. The red flags are noted so that people can investigate a little more with a mediator/attorney before jumping into mediation, if they fall into one of these red flag categories.

If I were in this business just to make money, I'd say "everyone is a candidate for mediation." As someone who has done litigation, mediation, negotiated settlements between lawyers, has consulted with clients who do their own divorce, and has observed collaborative divorce, my opinion is there are several ways to get divorced and there's no "one size fits all." Anyone who tells you otherwise is trying to sell you something.

[Diana Mercer]

08:00 PM on 05/24/2012

I think almost every case is suitable for mediation, even some of the red flags mentioned above.....and the biggest reason is that going to court is no solution. Sure, an attorney can issue a subpoena and delve into some of the financial stuff in a more forceful way than a mediator is able to do, but given how expensive and drawn out court can be, it's always worth a shot to go to mediation.

[Alison Patton]

10:18 PM on 05/24/2012

Diana, I agree it's expensive to use an attorney to delve into financials---and this should be avoided if at all possible.

But why undergo mediation--with the time and cost involved, and possible prejudice to you from the delay-- if the odds are greatly stacked against you and you're going to end up with an agreement that is financially unfair to you, or you were strong-armed into an agreement you regret later? That's what some of the more troublesome red flags are about. Some of the comments to this post are from people who feel mediation was the wrong decision for them and wish they hadn't done it. I think we as mediators need to take that input seriously and do effective screening.

Having some of these red flags apply to your case doesn't mean you can't do mediation; the idea is to investigate further with a mediator and/or attorney before making a decision about how to proceed with your divorce.

[Ladislas]

10:13 PM on 05/06/2012

Here's the secret: don't get married!!

[katieandtom]

05:09 PM on 05/08/2012

amen!

[Squillman Rhymnester]

09:33 PM on 05/06/2012

Do Your Divorce Right--book by two sitting judges who have handled thousands of cases.
This is indeed the real deal.

[kimper lee]

08:40 PM on 05/06/2012

Based on these red flags, few divorces will be finalized through mediation. Unless you had a quicky marriage and no children. Those are probably the best ones.

[cafebeege]

11:36 PM on 05/06/2012

I am a trained mediator. Though it has been years since I did it, I never saw a divorce that should have been settled through a mediator, let alone a SINGLE mediator rather than one for each participant. Infact, I never did or saw a mediation of any kind with ONLY one mediator rather than one for each participant. If things are that amicable, there wouldn't be a mediator, lawyer or anyone else needed......infact there wouldn't be a divorce. And usually (the woman) is still emotionally not as "divorced" as the man and is too vulnerable to give into demands. NOT a good idea in my opinion in a divorce situation where one is usually more vulnerable than the other.

[katieandtom]

05:12 PM on 05/08/2012

thank you! i completely agree with you. my ex husband completely controlled the mediation. lawyers who have reviewed my agreement are astounded that the mediator actually agreed to the the document.

a mediator is a controlling man's dream. in hindsight, i should have most certainly had a lawyer.

[Alison Patton]

02:23 PM on 05/17/2012

cafebeege: You raise a good point about how people are at different emotional points and levels of vulnerability during their divorce and during mediation. That is very true. The way I and other mediators deal with this is we strongly encourage our clients to have consulting attorneys (not at the mediation itself but outside of mediation) for these purposes: case assessment before starting mediation, advice and direction during the mediation process if needed, and to review any final agreement before signing off. This generally equalizes the playing field.

Sometimes the clients can't afford consulting attorneys and will instead read self-help divorce books (like Nolo Press) to educate themselves about divorce, or will jointly ask me the legal questions during mediation to get a full understanding of family law.

In my practice, most of my clients have had consulting attorneys. The few, who did not, had fairly simple cases with little at issue (for example, short term marriage, no kids, minimal assets). In simple cases, it is very possible for the parties to reach an equitable agreement through mediation without using consulting attorneys or outside assistance, and these are the low-cost divorce mediations I reference in the post.

[pcpc]

07:55 PM on 05/06/2012

They look so happy in the picture, it makes me want to get married so that I can't get a peaceful divorce!

[The Grouch]

07:08 PM on 05/06/2012

"mediation is often the least expensive and fastest way to get divorced"

Patton is trying to sell you something. I got divorced years ago, but I was lucky because there were no children involved and my ex was a reasonable person. It was about as quick and peaceful -- albeit still painful -- as a divorce could be. But there were NO mediators or lawyers involved. Try to do it yourself, if possible, and avoid the money-grubbing industry, because your financial life will take a hit, anyway.

[Alison Patton]

02:28 PM on 05/17/2012

Hey Grouch: If I were trying to sell you something, I wouldn't have included all the red flags which discourage people from mediating. (And I'd still be doing litigation if I were in this business for the money. There's not big money in mediation (as my husband will sadly confirm for you.) :)

[The Grouch]

04:58 PM on 05/17/2012

Yeah, I guess "money grubbing" was a bit strong. I just wanted people to know that there is an alternative (sometimes, if you're lucky) to getting other people involved in a divorce.

[artnotwar]

07:01 PM on 05/06/2012

Love the picture, two happy, smiling models shaking hands with the mediator. Like they are buying a car. Yeah, my divorce was like that. (roll eyes)

[Alison Patton]

02:30 PM on 05/17/2012

The photo gave me a chuckle too.