Navigating the process of divorce can be a painful and difficult time in any couple’s life. However, ending a marriage today need not always be a long-drawn and contentious affair with both parties fighting it out in a courtroom.
From uncontested and collaborative divorces to no-fault and do-it-yourself divorces, there are now an array of options available when it comes to deciding how to get a divorce. Mediation has also become a popular choice for couples looking for an amicable way to end their marriage. According to a recent Custody X Change study, 93% of divorcing parents have tried an alternative dispute resolution method (ADR) with more than half using mediation, making it the most popular ADR method.
While mediation has its advantages, it is important to understand the drawbacks of using this option when making a decision about your divorce. In this article, we will explore some of the pros and cons of mediation for divorce.
What Is Divorce Mediation?
Divorce mediation is a form of ADR that uses an independent third party, known as a mediator, to assist a couple in negotiating the terms of their divorce. The mediator encourages the two sides to communicate constructively and cooperatively, helping them reach a mutually acceptable settlement.
Once the couple has agreed on the issues relating to their divorce, such as the division of assets and debts, child custody, and spousal support, the mediator will draft a settlement agreement that outlines the terms of the divorce. This document will then be filed with the family court for review and approval by a judge before the dissolution of the marriage is finalized.
Pro: Less Time-Consuming
The divorce mediation process is typically less time-consuming than traditional divorce proceedings. Unlike a contested divorce there is no need to hire attorneys, set court dates, or gather and present findings in court. Instead, couples who choose to use divorce mediation typically have more control over their divorce process, allowing them to resolve their issues more quickly and efficiently than they would in court resulting in a much faster resolution to the divorce process.
Pro: Less Costly
Since mediation is a more collaborative process than a traditional divorce, the parties involved can work together to develop their own agreement without the need to hire separate attorneys. This also avoids the need to pay for costly legal fees, court costs, and other associated costs that come with legal proceedings. In most cases, each party will typically pay half of the mediator’s fees, which is usually a fraction of what it would cost to litigate their divorce in court. This cost-sharing arrangement, therefore, allows the parties to resolve their dispute without a large financial burden.
Pro: Greater Privacy
A mediated divorce can help divorcing couples protect their privacy during divorce proceedings. As it is a confidential process, couples are able to mediate their divorce in private rather than airing their grievances and personal details in a public courtroom.
In a traditional divorce, details such as discussions in court and findings presented become publicly available information that can be obtained from the local courthouse. Mediation discussions, on the other hand, will not be included in these records, and all decisions will be made in the privacy of the mediator’s office, rather than in a public court setting.
Pro: Greater Control of Outcome
A mediated divorce enables the parties to have greater control of the outcome. Rather than a judge making decisions regarding the terms of your divorce, you and your spouse have greater say on important matters such as child custody and division of assets by working out a settlement agreement with the help of a mediator. Unlike going to court, where the court dictates when you must appear with little regard for your personal schedule, mediation also allows you to take control of your divorce by deciding on the dates and times of meetings with your mediator.
Con: Imbalance of Power
Mediation divorce may result in an unfair outcome in cases where there is an imbalance of power between the parties. This is often the case where one party has more knowledge or resources than the other and is more persuasive or experienced in the process. In such cases, there is the risk of one party manipulating the other party into agreeing to a settlement that is not in their best interests.
Additionally, as this process is less formal than court proceedings, there is also less oversight making it easier for one party to hide funds or be less than honest about their financial situation in an attempt to gain a more favorable outcome.
Con: No Representation
Since mediation divorce involves both parties reaching an agreement without the assistance of an experienced third party or attorney, it can be a difficult and challenging process for some. Understanding, discussing, and negotiating legal matters unaided can make the process emotionally draining and contentious and also increase the chances of one spouse taking advantage of the other resulting in an agreement that may not reflect the best interests of both parties.
Additionally, without an attorney representing you, there will be no independent investigation or discovery process undertaken to determine whether your spouse is hiding assets or other relevant matters that the mediator may not know about.
Con: Requires Willingness
Often the parties to a divorce are unable or unwilling to see eye to eye on matters making it difficult for them to agree to work together to rationally and amicably resolve the terms of their divorce. Without this willingness, the parties will be precluded from pursuing a mediated divorce which requires that both parties voluntarily enter into the process in good faith and agree to negotiate in an open and honest manner on potentially complex and sensitive matters such as the division of marital property, alimony, child custody, child support, and parenting plans.
Pursuing divorce mediation as a means of dissolving your marriage is a largely personal matter influenced by many of the factors mentioned in this article. In particular, your willingness and ability to work with your spouse to reach an agreement on the terms of your divorce will determine whether this is an appropriate route for you both.
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