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When is Divorce Mediation Not Recommended? Who is it Right For?
Divorce mediation may not be suitable when there is a history of domestic violence, an imbalance of power in the relationship, or one party is unreasonably unwilling to negotiate. But, mediation in these situations can still be effective when a divorce lawyer represents the disadvantaged party.
Divorce mediation is a form of alternative dispute resolution parties use to reach a divorce settlement without having the divorce litigated in court.
In mediation, each party (and their divorce attorneys if represented) meet with a neutral third party—the mediator—to work toward a settlement agreement. Parties use mediation to reach agreements on child support, child custody, spousal support (alimony), and other issues divorcing couples must resolve. Mediation offers many benefits over traditional litigation and is the preferred method of resolving a divorce for many attorneys and parties.
While mediation offers many advantages, it may not be appropriate in every situation.
It is important to recognize parties use a neutral mediator, and a mediator does not offer either party legal advice. Situations with a history of domestic violence, an extreme imbalance of power between the parties, or where one party is just unwilling to negotiate are examples of times when mediation may not be the best option.
But as we will explain below, even in these situations, when an experienced family law attorney represents the disadvantaged party during mediation, mediation can still be an excellent option.
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Parties with a History of Domestic Violence or Abuse
Mediation requires good faith communication and negotiation to work towards a settlement during the mediation sessions.
This settlement often involves compromise in some areas to get a more favorable or creative agreement in other areas that may be more important to the party.
When there has been a history of domestic violence or abuse, one party may be afraid of the other party and unwilling to speak openly. This can be true even when the parties are placed in separate rooms during mediation—as is the standard procedure in our office. The victim can be afraid to speak freely, knowing the perpetrator is in the same building.
Similarly, the perpetrator may use the process and settlement offers to attempt to continue to exert control over the victim.
In these situations, mediation may not be the right approach. Mediators are neutral parties and do not offer advice or advocate for either party. The mediator is there to help the parties facilitate an agreement and help overcome hurdles to reaching that agreement. When domestic violence victims do not have an attorney to advocate for them during mediation, they may feel more comfortable seeking assistance from the court instead of attending mediation.
However, if an experienced divorce attorney represents the victim, victims can still benefit from attending mediation.
The key is having a legal advocate during the mediation, which the mediator does not do. When victims have a legal advocate and can negotiate with their advice, mediation can effectively resolve the divorce.
Relationships with an Imbalance of Power
Similarly to the issues in domestic violence relationships, mediation may be inappropriate when there is a significant imbalance of power in the relationship.
Effective mediation can be difficult with power imbalances, like when one party has significantly more financial resources than the other or has exerted more control during the relationship.
While there is often an element of compromise in mediation, compromise does not mean one party just gives up and agrees to everything the other party says. This can happen when there was an imbalance of power during the relationship.
We see this impacting people when they are afraid or feel guilty about divorce.
Fear doesn’t necessarily refer to a fear of physical violence. In divorce, parties are forced to look at their future, which will be different from the one they have been planning during the marriage. Suddenly, people must know how they will meet their financial needs, how they will deal with the debt from the marriage, and how they will get back into the workforce.
These are all issues that divorce forces people to examine. When there is an imbalance of power, people may use that imbalance to dominate the mediation.
But, when an attorney represents the disadvantaged party during the mediation, this will usually cure the problems.
Couples Who are Unwilling to Negotiate
When a party is unwilling to negotiate in good faith, it is unlikely there will be a successful mediation.
But this situation is more uncommon than you may think. There are many benefits to mediation, and what people call an uncontested divorce, that traditional litigation does not offer, so most people take it seriously. Mediation is usually faster, cheaper, provides an opportunity to hedge liabilities, and allows for more flexibility and control over the outcome.
Most people will not unreasonably ignore these benefits and will participate in the mediation process.
If a party is unwilling to negotiate, representation by an attorney may help them and make mediation a useful option. But, if the person is just dead set on being unreasonable and unwilling to participate in mediation, you may need to seek assistance from the court.
Who is Divorce Mediation Right For?
At Burggraff Tash Levy, we offer divorce mediation services, and we believe mediation is an excellent option for most divorces. When parties want to save money, keep their divorce amicable or uncontested, have a speedy resolution, and maintain some control over their divorce, mediation is an excellent option to explore.
Even in the situations above, where additional protective measures may need to be taken, when those issues are addressed, mediation is still an excellent option to reach a divorce settlement.
There are other situations that people often think are not appropriate for mediation. Still, because of the benefits, they are actually ideal situations to resolve in mediation with an experienced divorce mediator.
Counter-Intuitive Times Mediation Is Recommended
In a litigated divorce, the amount of time allocated for the final trial can be one of your biggest enemies.
That is one of the benefits of the divorce mediation process. You can have more time to discuss and resolve complicated details you may not receive while taking your case through the court system.
Because of the additional time available, situations that might not seem appropriate for mediation will benefit from this form of alternative dispute resolution.
Couples with Complex Financial Issues
It may seem like cases with complex financial issues should not be taken to mediation. But this is actually an ideal case for mediation.
In mediation, you can have more time to reach a resolution than you would be afforded to present your case in a trial. Although, you will likely want the assistance of a divorce attorney to provide you with advice during mediation.
When there are complex financial issues, there are usually also areas of exposure and liability and high costs to prove claims and hire experts. The negotiations and compromise in mediation can be used to limit that liability and exposure and reduce the costs of having to prove your case to the court.
High-conflict relationships will likely need specific details in their final orders in order to limit future conflict and litigation.
In a trial, you may not have enough time to get those details into the court record. Or, you may need more creative and specific orders in your parenting plan to avoid future conflicts that a judge may not be willing to enter.
Mediation offers more time to resolve these issues and offers the parties an opportunity to be more creative and flexible in their agreements. People often think that a high-conflict case might be inappropriate for mediation, but it is usually a good case to bring to mediation.
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We Recommend Mediation More Often Than Not
Beyond our office’s divorce mediation services, as divorce attorneys, we often take our divorce cases to mediation because of all the benefits.
But there are times when mediation may not be appropriate. When there is a history of domestic violence, a power imbalance, or one party is unwilling to negotiate, mediation may not be the best option. If your case falls under one of these situations, discuss your case with an experienced divorce attorney to see if those issues can be cured.