On this blog, we often write about the benefits of mediation in divorce. For many people, mediation is the best option for resolving a divorce. Generally speaking, when compared to courtroom litigation, mediation is faster, less expensive and less likely to lead to lingering resentments and bitterness.
That said, mediation isn’t the best option for every person or every divorce. In this blog post, we’ll examine some situations in which mediation is not recommended.
Intimidation and power imbalance
Mediation is meant to guide the parties toward a settlement. The mediator is a neutral third party who, unlike a judge or an arbitrator, does not make a decision on the case. Rather, they facilitate discussion between the parties, so that the spouses themselves can resolve their issues.
With that in mind, mediation is best for situations in which the spouses can work together with a basic degree of trust. It is not a good choice in cases involving a history of one spouse intimidating or manipulating the other.
It can also be a bad fit for situations involving a big power imbalance, such as when one spouse has a more prominent social position or significantly more wealth than the other. Mediators are trained to recognize signs of power imbalance and to mitigate problems when they can, but some power imbalances are just too severe for the mediator to do anything about them.
Domestic abuse
A history of domestic violence makes mediation a bad choice. As noted above, mediation requires the parties to negotiate in good faith.
A victim of domestic violence will not feel safe in the presence of their abuser, and will therefore not be able to protect their interests in negotiation.
Complex financial issues
It can be difficult to resolve the financial issues in any divorce, even a fairly amicable one, and even one involving people of average means. It takes a lot of work to divide real estate or complex assets such as retirement accounts or stock options. Generally speaking, the more assets a couple has — and the more complex these assets are — the more difficult it is to divide them in divorce.
Many people who are willing to work with their spouse to resolve these issues can do so through mediation so long as they have help from skilled professionals.
Still, some financial issues are so complex that they overwhelm the mediator.
Learn about your options
Once again, we will note that we feel mediation is the right choice for many of our clients. However, there are cases in which negotiating a settlement through litigation or even going to court may be the better option.