Divorce Mediation: The Pros and Cons for a Woman
Alternative dispute resolution such as mediation is an attractive option to litigation in virtually all aspects of life. It has become increasingly common in employment and contract disputes. Another area where mediation is becoming popular is divorce. For some, it offers a more cost-effective, quicker, and kinder process than court litigation.
Mediation is a cooperative, voluntary, and non-binding process for working out disputes. Mediators facilitate the negotiation process and are neutral third parties. This means that they do not advocate for either party. Another big advantage of mediation is that it gives parties more control over decisions affecting their daily lives. Unlike courtroom litigation, where a judge makes key decisions, mediation offers a non-adversarial approach.
It’s important to note that when getting divorced, however, your choices are not mediation or going straight to court. It’s not either/or. There are several ways to divorce, including DIY or a collaborative divorce approach. However, even today, most people still get divorced the old-fashioned way. Each party hires a lawyer and the lawyers, after consulting with their clients, negotiate the settlement agreement. This is an uncontested divorce. If one party refuses to cooperate or negotiate, the court may become involved. And if the parties still fail to settle, this is when a case may go to full-blown trial. This is a scenario no educated person wants.
This article will focus on the pros and cons of mediation and as well, what women must know about the process.
Who are Mediators?
Good mediators are highly trained in their craft and possess a keen ability to ensure that each party feels heard and that both parties’ concerns and objectives are expressed. The goal of all mediations is to reach a global settlement that addresses the needs, concerns, and desires of the parties. Mediators are licensed attorneys, financial people, therapists, real estate brokers, and other professionals who are trained in the mediation process.
NOTE: SAS for Women recommends that if you choose mediation as a process for divorce, you also choose a mediator who is a licensed divorce attorney. You will want someone educated in divorce law to make sure the settlement agreement is legally sound and not rejected by the courts down the road.
How long is the Mediation Process?
As with all aspects of divorce, it depends on the complexities of the issues. Usually, the mediation process will take longer for parties with children or those with significant assets. This is logical because the more complex the issues are, such as an estate with bountiful marital assets and large debts, the longer and more complicated negotiations may be. But typically, most parties may have 2-8 mediation sessions before reaching a settlement agreement.
The Pros of Mediation:
- Mediation is less adversarial than litigation through the courts. But always remember that if mediation fails, both parties can retain counsel and attempt to secure a settlement. If a settlement is successfully reached outside of mediation, counsel for the parties can file uncontested divorce paperwork. If settlement is not possible then your case will likely become contested and judicial intervention will be needed.
- Mediation is a private and confidential process, unlike litigation. If judicial intervention is necessary, it is important to understand that court decisions may become public records.
- The timeline for mediation is flexible. This means that it depends on your schedule. If you are busy with work or social obligations, you can schedule the mediation sessions at your and your spouse’s convenience. (In contrast, if you must go to court, court appearances are scheduled based primarily on the judge’s availability and not your preferences.) Court appearances are also mandatory.
- Participants maintain more control over the process than they would by going to court.
- Mediation is more affordable than litigation.
- Mediation is significantly quicker than litigation.
- Mediation sets a more positive tone for the long-term relationship with your former spouse and begins the co-parenting relationship on a friendlier foot than litigation.
As you continue to educate yourself, read our critical piece on “36 Things to Do If You are Thinking about Divorce”.
The Cons of Mediation:
- If mediation fails, you end up paying for the stalled mediation process and also for attorneys down the line for divorce litigation. Sometimes, you will be able to retain an attorney who can negotiate a settlement proceed with an uncontested divorce, and avoid court, altogether. Other times, when no immediate settlement can be reached, a contested divorce may be necessary. During the latter instance, you end up spending more money and investing more time into the process than if you had just commenced a divorce action without any mediation.
Learn what an uncontested and contested divorce is by reading …
You’ll never guess … “What is a Contested Divorce?”
- In some cases, hostilities and infighting may increase during the mediation process—this is true in especially high-conflict cases.
- If one party possesses better bargaining power or deeper pockets and can exert their will during the mediation process, this could be highly problematic. One party might be accustomed to negotiation by the work they do, or a master manipulator, or just have a more dominant personality.
In some cases, bullies strategize a better outcome for themselves under the guise of “mediating” the conflict. This may result in an unfair settlement agreement that is not aligned with the law.
Are There Ever Times When You Should Not Consent to Mediation?
Yes. There are times when consenting to a mediation is counterproductive. The Court is always better equipped to provide safeguards to protect litigants and children in extreme cases. It is nearly impossible to mediate with an abuser or someone who struggles with sobriety issues. Always remember that the position that the abuser or party with substance abuse issues may be advocating for may not be in your or your children’s long-term best interests.
The Three Times When You Should Never Mediate During a Divorce:
- You are the victim of domestic violence (physical abuse and repeated emotional and verbal abuse) during your marriage.
Read “Leaving an Abusive Marriage? There are Steps You Need to Take First”.
- There are allegations of child abuse or child neglect, and
- There are serious allegations involving substance abuse (alcohol or drugs).
What Can Go Wrong During Mediation:
Fighting between the parties or bringing a new significant other to the mediation sessions is a recipe for disaster. Do not do this. It will only enflame the fire. You want your mediation to be as calm and respectful as possible so that the end goal of amicably settling the matter is accomplished. Also, keep in mind that your mediator is not your therapist.
While expressing your concerns is paramount, “venting” should be reserved for therapists and trusted friends. Your mediator is a professional with an assigned job.
Let them do it.
What Women Interested in the Mediation Process for Divorce Should Know:
Every woman should consult with an attorney before beginning the mediation process. A consultation with an attorney provides women with a baseline education of the law in their specific jurisdiction. It is harder to negotiate in a mediation if you are unaware of what you are legally entitled to in your state. Knowing this information is essential and empowering. It also prevents you from being naïve and bamboozled by the other side during mediation.
In particular, women should be encouraged to get educated about their rights and what they are entitled to outside of mediation so they go into the mediation process not relying on what a mediator says or what their spouse dictates. Consultative or “reviewing attorneys” may also be retained to review, draft, and submit the parties’ final settlement agreement to the Court. Consultative attorneys play an important role during the mediation process.
Consider reading “Hiring A Mediation Attorney Can Save You Money in Divorce.”
What are Some of the Major Pitfalls Associated with Mediation?
Mediation works as well as the people involved in the process.
If there was a lack of financial transparency during the marriage, one party could enter into the mediation process at a serious disadvantage because they do not possess necessary information about the family’s finances, assets, and liabilities. If the marriage lacks financial transparency, the party who possesses the financial knowledge will likely have an advantage during the mediation process. To ensure as even a playing field as possible, both parties need to have access to all financial information and have awareness of the family finances.
Role of Attorneys in Mediation
If one side is not being transparent and honest during mediation, the parties may wish to retain attorneys. The attorneys may be able to work with one another to reach a settlement and then proceed with an uncontested divorce. This would involve electronically filing uncontested divorce paperwork for the parties and waiting for the divorce to be granted. Uncontested divorces enable the parties to avoid having to make regular court appearances. When an uncontested divorce is not possible, a case may be litigated through the courts, “becoming contested.”
Discovery and Full Financial Disclosure
The court permits broad disclosure mechanisms. For example, in court, you will have access to depositions, notices of discovery inspections, and interrogatories to elicit other additional information from your spouse that you would not be able to enforce during the mediation process.
During divorce mediation, parties will usually exchange some financial information such as statements of net worth, but complete discovery which is an exchange of all financial documents such as tax returns and property records is recommended but not required. If you need to dig deep to find potentially hidden assets or have a potential claim for marital dissipation, you will be better off hiring a lawyer, and if worse comes to worse, litigating through court. You may even need to consider hiring a forensic accountant to assist in discovering potentially hidden assets.
Always remember that mediation is an excellent alternative to litigation. But for it to work for both parties, there needs to be a history of, and current existence of, mutual trust, financial transparency, and respect in place before mediation.
If those essential elements do not exist or if your divorce is likely to be high-conflict, using the traditional approach of hiring a lawyer, and potentially relying on the courts will be more realistic and sometimes necessary.
NOTES
Meredith L. Singer is an experienced NYC family law attorney and a zealous advocate for her clients. She strives to keep legal representation affordable and accessible. If you are a resident of the New York City area, you are invited to schedule a meaningful consultation with her to learn more. V,isit Meredith’s website at: www.meredithsingerlaw.com.
Since 2012, SAS for Women has been entirely dedicated to the unexpected challenges women face while considering a divorce. SAS offers women six FREE months of email coaching, action plans, checklists, and support strategies for you, and your future. All of it is delivered discreetly to your inbox.
Join our tribe and stay connected.
*We support same-sex marriages. For the sake of simplicity in this article, however, we refer to your spouse as your “husband” or a “he.”
