When is Divorce Mediation Not Recommended?

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when is divorce mediation not recommended

While mediation can be a cost-effective and private process to resolve your divorce, there are times when divorce mediation is not recommended. When a couple is breaking up, they must navigate the divorce process if they are married.

Traditional divorce proceedings can be a long and arduous experience, so many couples will opt to use mediation or other alternative dispute resolution methods to create an agreement on how they will separate their lives and move forward.

Mediation can be an excellent tool for encouraging communication between the parties involved and resolving the dispute without traditional litigation. However, not every divorce should be sent to mediation, and this article will outline the answers to the question, “When is divorce mediation not recommended?” by outlining eleven situations where mediation may not be appropriate.

The Mediation Process vs the Court System

Before diving into the factors that may influence the ability of a couple to resolve their divorce through mediation, it is vital to have a basic understanding of the mediation process and how it compares to court proceedings.

This will help illustrate why these situations may make mediation difficult. However, by understanding the mediation process, you will also be able to identify the instances where these situations may not hamper mediation and choose to move forward with the divorce mediation process.

Divorce Mediation

Mediation is a dispute resolution process guided by a neutral third party called the divorce mediator. This party has no interest in the outcome of the divorce and does not have allegiance to either party. The mediator facilitates discussions surrounding topics like child custody arrangements and property division to help the parties involved agree on these topics and resolve the disputes to be divorced. It is a collaborative process.

Unlike court proceedings, where a judge decides child custody and property division, mediation sessions allow the parties to find mutually agreeable solutions and create a plan for their separate lives.

Divorce mediation allows the parties to control the outcome and reach mutually acceptable agreements to maintain a better post-divorce relationship. However, divorce mediators are not allowed to decide the case for the parties and cannot usually provide an analysis of what would happen in litigation.

The parties may be represented by divorce attorneys or decide not to hire a lawyer. Either option is appropriate for a successful mediation. A family law attorney may provide legal advice and expertise on the complex legal issues surrounding divorce law.

However, there may be no need for legal guidance when there is an uncontested divorce. The mediator facilitates communication surrounding these complex topics and can help the parties understand their positions.

Finally, mediation is voluntary, meaning both parties must agree to participate unless the judge requires it in a rare case. It also does not guarantee a solution because the parties have to agree to create one. When mediation fails, the parties can pursue other conflict resolution methods, such as collaborative divorce or divorce litigation.

Divorce Litigation

Divorce litigation often requires legal representation and expertise to divide marital assets. The parties appear in front of a judge who hears the facts of the case and decides what they think is best for both sides. A judge, like a mediator, is an impartial third party. Yet, instead of guiding discussions toward a resolution, they must decide the case.

Because a trial requires a lot of time and preparation from the divorce lawyer, it often costs more. Therefore, mediation is typically the more cost-effective option. However, a judge and the divorce attorneys will have the legal experience to handle complex issues so that it may be worth it for a complex case.

In most cases, the decision is left up to the parties as they weigh the desire for more control and mutual agreement over the outcome with the necessity of legal professionals and experienced attorneys.

The Warning Signs that Divorce Mediation is Not Recommended

While mediation can be a cost-effective and private process to resolve your divorce, it is not always the best option. This can be for various reasons, specific to the couple and just general cases, such as complicated property division issues, child custody, child support, and spousal support.

This is a list of 11 signs of divorce mediation not being recommended. It does not include all situations, nor does it mean that you are barred from using mediation if your case falls within one of these situations. However, such cases may face difficulty moving forward in mediation, and couples must make informed decisions.

Subjective Factors

We will begin this discussion with the subjective factors influencing whether divorce mediation is recommended. These factors have more to do with how one or both spouses feel about the relationship and the divorce than they do about the facts of the relationship. The parties have more control over these situations and can change them if they want to participate in divorce mediation.

Animosity Rules the Relationship

One of the biggest reasons that mediation may not be the best option for a divorcing pair is that they have created a culture of animosity toward one another. They cannot approach the situation hoping for a mutual resolution. While it is understandable that most couples are not in the best spot when they are getting a divorce, when one party or both starts looking for ways to make the other’s life miserable rather than what will work best for both, they will either end up with a bad resolution or need to skip mediation altogether. While this can be worked around through communication and attention, it does not create a welcoming environment for resolution.

Different Views of Reality

For many parties, it is difficult to understand and acknowledge that one spouse is likely experiencing the same breakup and relationship differently from the other. This can lead to one party significantly undercutting the other’s experience and causing the mediation to either derail or abruptly halt. Both parties must remember that they are coming into this experience with potentially vastly different views, but that does not mean the other party is wrong.

Both experiences can be actual simultaneously. Again, this can be discussed and acknowledged in mediation sessions or cause the parties to proceed with traditional litigation.

Intimidation or Inability to Speak for Yourself

Another instance that answers the question, “When is divorce mediation not recommended?” is when one spouse either feels intimidated by the other spouse or thinks they cannot adequately assert their needs. This position is separate from domestic violence, which will be discussed later on, but it can feel very similar. However, this position comes less from the other party’s actions and more from personal matters related to the spouse who feels this way.

This feeling is usually tied to someone with lower self-esteem. While it can be a part of abusive relationships, the factor can also be found in healthier relationships where one party had other experiences that made them feel less self-assured and able to communicate.

Divorce mediation may not be recommended here because it could put this party in a challenging situation. After all, they felt they could not advocate for themselves or did not.

Speed

Although it can be faster than litigation, divorce mediation requires time to prepare for and execute a thorough analysis of the situation and mediate accordingly. A divorce mediator will be assigned to the case and prepare the parties. For this reason, if you need to get divorced quickly, it may be better to create an agreement with your spouse and skip divorce mediation and litigation altogether. However, you may want to hire a divorce lawyer to protect your rights and needs.

Not Interested in Resolution

Divorce mediation requires a willingness to participate in the process and reach a mutually beneficial solution. Mediation will not be successful if one spouse is unwilling to work together to create a plan moving forward. When one or both parties are not committed to the process, there is little chance they can find a mutually agreeable solution to their problems. This could be worked around in mediation, but convincing this party to participate may be difficult.

Objective Factors

In addition to the subjective factors above, objective factors will influence whether the parties can or should use divorce mediation. These factors are based on the factors of the case, such as the issues involved and the power dynamics between the parties. In some situations, it is unsafe for the parties to mediate, and it would not be recommended in most circumstances involving these issues.

Significant Substance Abuse Issues

If one spouse has significant substance abuse problems, it can make it challenging to participate in divorce mediation properly. Additionally, if that person is under the influence during the mediation sessions and when they sign an agreement, there may be questions as to the validity of the agreement. With this in mind, it may be best to use divorce litigation to resolve the dispute or encourage or require treatment for substance abuse before divorce mediation is used.

Disputes over Child Custody

Child custody arrangements and child support are complex areas of family law. While divorce mediation may handle many issues, including child custody, there may be situations where a judge is required to step in to protect the child and order child support. Many states allow mediation to determine custody arrangements but will not allow parents to make determinations that are not in the child’s best interests. This is particularly true when one party is accused of abuse.

Additionally, if either party receives public benefits, the state may need to be involved in child support determinations. In these instances, divorce mediation is not recommended.

Domestic Violence is Present

Another factor that could be an influence against divorce mediation is domestic violence. This involves any coercive or controlling behavior exerted by one party over the other. When domestic violence is present, it can make it very difficult for any agreement to be considered a fair agreement because of the significant power imbalance between the parties.

A trained mediator may be able to control the power imbalance and help the parties create a plan, but in most cases, it is best to proceed with divorce through other means.

Complex Financial Situations

Complex financial issues and property division can make divorce mediation difficult. Understanding how to divide marital assets equitably often requires specialized knowledge. This can be particularly true in situations requiring spousal support, assets intertwined in business, or other holdings requiring additional considerations.

When these types of assets exist, it may be helpful to use a specialized alternative dispute resolution, hire a divorce mediator with knowledge and experience in that type of asset division, or pursue traditional litigation.

Knowledge is Not Balanced

Another issue that may make divorce mediation not recommended is when one party has exclusive knowledge of the assets. Such cases can involve domestic violence, where one party shields the assets from the other party, or it can happen when one spouse is more involved in the financial assets that they share.

When this knowledge is imbalanced, it can be challenging for the mediator to understand the assets completely, and it may cause one spouse to agree to a deal without full knowledge and understanding of the decision they made. In this case, mediation may not be recommended.

Agreement or Easy Disbursement

Finally, a happier way that divorce mediation may not be needed is when the parties can quickly and fully agree on a dissolution or have limited assets and no children, making the dissolution easy. Although speaking with a family law attorney is still recommended to protect you in these cases, it does allow a faster divorce, and mediation may not be needed to reach this agreement.

Contact Legal Representation to Discuss the Mediation and Divorce Process

Suppose you are at any point in the divorce proceedings and are considering mediation. In that case, contacting your attorney is always a good idea to protect your rights. Property division, child custody, and other issues can make divorce mediation or litigation difficult. However, having a reasonable attorney by your side will ensure that you are protected, whether divorce mediation is recommended.

To learn more about divorce mediation and when divorce mediation is not recommended, contact ADR Times!

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Emily Holland
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