The Pros and Cons of Divorce Mediation

My Spouse Refuses Mediation! How to Discuss the Pros and Cons of Divorce Mediation

If you’ve done your research on divorce mediation vs. hiring a lawyer, then you already know many of the benefits: a quicker, more amicable resolution, lower cost, and avoidance of court. However, your spouse isn’t so sure. When you’ve seen most of the people in your life handle a divorce through attorneys, why forge a different path? Or perhaps they believe you’re trying to “pull one over” on them by suggesting a process they are unfamiliar with. How can you convince them otherwise?

Here’s a quick guide to discussing the pros and cons of divorce mediation:

“Mediation sounds like counseling.”

In divorce mediation, your mediator will focus on listening to both of you in turn and facilitating non-combative conversation. That might sound similar to counseling, which you may have tried and found didn’t work. However, mediation is not counseling. The goal is not to “fix” your marriage or relationship. Divorce mediation is begun with the specific goal of dissolving your marriage in the least painful way possible while keeping sessions to the minimum needed (often three to eight) to complete this goal to the satisfaction of both parties.

Related: 6 Reasons To Use A Mediator

“We’ll never agree on anything.”

With an attorney-led divorce, each side hires someone who is, essentially, a professional arguer to be on their side. The goal of your attorney is to not budge until they get the best deal for you — and that’s your spouses’ attorney’s goal too. It’s more unlikely that you’ll find common ground with attorneys leading the negotiations and more likely you may end up in court. And once you are in court, if a judge leans to one side, that’s it. No more negotiation. However, a divorce mediator is specially trained to facilitate discussion, not argue a single side. Each spouse will feel listened to and respected, rather than cross-examined. You can find ways to compromise or come up with creative solutions a judge might not consider until you reach an agreement you both feel is fair.

“Our divorce is too complicated.”

Divorce mediators, like attorneys, may have areas of expertise that work best for your situation, like couples who co-own a business or need to establish a custody agreement. Ask potential mediators if they specialize in the matters you need to resolve to assure your doubtful spouse that the mediator can handle it. Additionally, an experienced mediator has likely seen most divorce scenarios and knows when to advise you to hire outside experts (such as an accountant) for more complex matters. This might seem like an extra step that costs more money but it’s even more likely the same step would be necessary in an attorney-litigated divorce.

Related: Divorce Mediator or Litigator?

“I don’t trust you. I need my own attorney.”

You and your spouse are encouraged to seek whatever legal counsel you need. Mediation exists to keep you out of a court battle, but getting attorney “advice” is perfectly appropriate. A divorce mediator is a neutral third party; they never take sides. However, the laws surrounding divorce still apply. An effective divorce mediator will “educate” both parties regarding their rights. In addition to learning about the laws and guidelines, both you and your spouse will get a chance to speak your mind and state your needs. And once you have come to a divorce mediation agreement, you can take this agreement to your own attorney to ensure it is sound and properly represents your interests. If you find an issue, you can agree to return to the mediator to work through the problem.

Related: Mediator or Attorney?

“Sounds like I may have to hire an attorney anyway. What’s the point?”

When hiring an attorney to consult with or review your divorce mediation agreement, you continue to represent yourself and therefore remain in control of the hours needed for this process. On the other hand, if you retain an attorney to “represent” you, it’s impossible to guess the number of billable hours you’ll be paying for as your attorney controls the process and prepares for a court battle. So even when hiring an attorney to consult and/or review your mediation results, the overall divorce mediation cost will be dramatically less than hiring an attorney to handle your divorce in its entirety. The mediation process will be faster, as well.