For couples considering divorce, mediation may seem like an ideal option on paper. Promises of less stress, cheaper costs and faster results tend to lure couples in – but for many, mediation ends in more frustration and wasted time.
The truth is: Mediation can be a win-win solution, but only if both spouses are confident in their rights and properly prepared for the process. When spouses are not on an even playing field, when they have unresolved conflicts, or if there is any distrust between them, mediation may just drain resources without yielding any results.
Can you benefit from divorce mediation?
While mediation is not for everybody, it can be a good approach for some divorcing couples. Before you jump in, ask yourself these questions about both you and your spouse:
- Do you both still trust each other? Mediation is not designed to investigate financial issues or verify evidence and facts. If you have reason to distrust your spouse, or if they have reason to distrust you, mediation will likely not be the best solution.
- Are you both willing to give the other party 51% of the assets? Mediation is a game of give and take. If you are not prepared to give your spouse their share, or if you believe they will fight you for more, you may want to explore other solutions.
- Are you both ready to amicably end the relationship? Mediation cannot force a settlement, so if either party wants to remain in the marriage, mediation may be a pointless endeavor. Likewise, if either of you harbor resentment or negative emotions about the other, you will likely not make much progress in mediation.
- Do you both have a similar understanding of finances? It is easy to be taken advantage of in mediation. If either party has more financial savvy than the other, they may leverage this to trick the other spouse into giving up more of their share. It is important to be on equal footing, and to know what a ‘fair outcome’ looks like for you.
If you answered yes to all of the above questions, you may be a good candidate for the mediation process. If you do decide to pursue mediation, however, you may still encounter its pitfalls.
What can go wrong in mediation?
When you and your spouse enter divorce mediation, always be aware of what could go wrong.
- Your spouse may be using mediation to delay the divorce. Even if you both agree to divorce, one spouse may use the mediation process to buy more time. During this time, they may make decisions about their finances or assets that put them in a more favorable position during negotiations or litigation.
- You may get manipulated into giving up more than you need to. In many situations, the more financially savvy spouse (or the spouse with more power in the relationship) pushes hard or mediation, claiming that it will be faster and cheaper without an attorney involved. In these cases, that spouse almost always receives a better result. Even in mediation, always hire your own divorce attorney to provide counsel and educate you of your rights prior to your mediation sessions.
- Your complex, high-value assets may get undervalued. If your divorce involves complex tax issues or high-value assets such as a business, spouses will be responsible for receiving their own valuations and tax assessments. Without an attorney’s counsel, you may receive an unfair or inaccurate assessment that is in the other party’s favor.
These are just some ways that mediation may hurt the outcome of your case. It is crucial to be fully informed about your rights, the legal process and all your options prior to getting started. By staying informed, you can avoid some of these common mediation pitfalls.
Always consult a family law attorney before starting mediation. They will be able to fully evaluate your situation to determine if mediation is a good solution for you. If you do proceed, they will also be able to offer their honest advice throughout the mediation process to ensure you are treated fairly by your spouse, the mediator and any experts that are involved. With a full understanding of mediation’s pitfalls and guidance from a trusted attorney, mediation may lead to a win-win solution for you.