For the couple getting divorced, there are a number of choices available to them of how to go about it, from negotiating directly with each other (pro se negotiations) to leaving it all in a judge’s hands (litigation). At a time when there are already so many questions and so much stress, it may seem overwhelming to have to choose which option is best for you and your family. Consider your responses to the following questions to determine if mediation is the right process for you.
1. Is there a history of domestic violence, substance abuse, or mental illness in your relationship?
While domestic violence, substance abuse, and mental illness do not automatically mean that mediation will be ineffective, they do create more challenges in the divorce process. A couple who is considering mediation and has any of these issues should discuss the presence and degree of these issues with the potential mediator before deciding.
Couples with a history of domestic violence have power and control issues that may cause the victim to agree to anything as the aggressor wields his control in subtle ways that may not be obvious to the mediator. A person with a substance abuse problem may try to mediate in an inebriated state during which she is unfit to reach an agreement. Certain mental health issues may cause a person to be unreasonable, which may make coming to a fair agreement impossible.
If you or your spouse fall into any of these categories but still wish to mediate, it may benefit you to hire a mediator who has a background in mental health. Psychologists and other types of counselors are better trained to recognize and deal with couples with these issues.
2. Do you trust that your spouse will freely disclose all relevant information?
For mediation to be successful, there must be a certain level of trust between the parties. One cannot negotiate reasonably without complete knowledge of the couple’s assets, liabilities, and income. If you are not confident that your spouse will be transparent with this information, or with any other information that may be relevant in your divorce, then mediation may not be the right option for you.
3. Are you and your spouse able to communicate with one another?
While it is understandable that parties in a divorce may struggle with their communications with one another, during mediation, it is important that they are able to listen to one another and to meaningfully discuss options for settlement. There may be times during mediation when parties argue or emotions get heated, but the couple must be able to discuss matters with the mediator’s guidance.
4. Are you concerned about the cost of litigation?
Litigation is expensive. The more matters that you resolve via mediation, the more money you will save. Even if you are unable to resolve every issue, the less issues that you leave for the judge to decide, the less expensive your divorce will ultimately be.
Is it important to you to feel as though you have control over your process?
In mediation, you and your spouse control the pace of your meetings and the issues to be discussed. If you need a break, you take a break. If you aren’t ready to discuss an issue, it may be postponed for a later meeting when you are more comfortable. Litigation does not allow for this flexibility.
Before you determine that mediation is the appropriate process for your divorce, be sure that you understand your other process options.
