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Who Should Not Use a Divorce Mediator?

Many divorcing couples are able to create an amicable divorce settlement with or without mediation. Generally speaking, mediation is an excellent dispute resolution tool, but it’s not right for everyone.

The goal of divorce mediation

The goal of divorce mediation is to avoid giving a judge the power to decide how to distribute your marital assets and debts. When you go through mediation, you may have to negotiate and compromise, but you ultimately retain control over how your property is divided. 

To reach your goal, you’ll need to work with a mediator who is skilled at helping couples overcome their differences and create a marital settlement agreement – a legally binding document that spells out exactly how property will be divided in divorce.

When mediation fails: arbitration or a judge/court

If a couple can’t reach a full agreement, even if there’s just one remaining issue, they can try arbitration. Similar to mediation, divorce arbitration is led by a neutral third party. But unlike a mediator, an arbitrator can make and enforce legally-binding decisions about the sources of conflict in order to reach a final agreement. While arbitration can be less expensive and quicker than court, spouses do not have full control of the outcome.

When all else fails, a judge must step in and decide the outcome. For example, if you and your spouse agree on all terms of your divorce except who should keep the marital home, you must go before a judge to have them decide how to split the home. Because a judge is required to follow certain state guidelines and rules, they may decide that you need to sell the home and split the proceeds evenly between the two of you.

This is why it’s important to enter mediation with an open mind. Going before a judge for any item takes away your control over your property.

Three types of divorce mediation

There are three types of mediation: facilitative, evaluative, and transformative. 

Facilitative mediation

Facilitative mediation occurs when a mediator attempts to have spouses discuss with one another how to best resolve their disputes. The intent is not to give the marriage a second chance. Rather, it is to help the couple resolve their property distribution disputes so they can avoid the time and cost of having a judge decide for them. 

Evaluative mediation

In evaluative mediation, couples usually sit in separate rooms while the mediator goes between them, working to help them both understand the legal merits of each other’s positions. Often used in complex and contentious divorces, evaluative mediators wear a “marriage counselor” hat as well as an “assistant negotiator” hat in their work.

Transformative mediation

Transformative mediation occurs when a couple has strongly held beliefs about conflict. These couples often find it challenging to find common ground. By looking at the core of the conflict itself and not individual items in the marriage, the mediator helps spouses resolve their issues and avoid going to court. 

Read: Which of the 3 Types of Divorce Mediation Will Work Best for You?

Note: Some states require divorcing couples to enter mediation prior to their first hearing. If your state or county requires this, you’ll have no choice and will need to at least attempt to resolve your divorce through mediation. While mediation is often the best approach for divorcing couples, it’s not always the best option for spouses who are not amicable. 

Who benefits most from divorce mediation?

Amicable couples benefit most from divorce mediation. When a couple comes to the table with an open mind, they’re more likely to resolve their issues through mediation. This isn’t to say that only amicable couples should attempt mediation. Any couple can give it a shot … and it may even be required by your state’s laws. 

When going through a divorce, you may not want to think about spending another moment talking to your spouse. There’s a reason your marriage is ending, and you just want it to be over. But putting in the work in the short-term can make your long-term gains more fruitful.

Situations where mediation may not be your best choice

Let’s start with this presumption: Except in the most extreme divorce cases, you should at least give divorce mediation a try. 

There’s a caveat here: You should only give it a try if you and your spouse are both willing and open to the mediation process. If you’re not, it’s probably doomed to fail. 

Abuse, neglect, or an entirely uncooperative spouse

In circumstances of marital abuse or neglect, you may be better off avoiding mediation. In that type of divorce, you may find better resolution by working with a divorce lawyer, especially if things like child custody, safety, or deceit regarding financial disclosures is a concern.

Low financial reserve

While divorce mediation may be good for a couple – and it costs less to hire a mediator than it does a divorce lawyer – price may still be a consideration. Mediation isn’t cheap, especially if it takes you multiple sessions to reach a marital settlement agreement. While the cost can be split between you and your spouse, it still adds hundreds of dollars to your divorce expenses

Note: Some states allow you to request court mediation and a fee waiver, reducing or eliminating the mediator fee. 

If you’re wondering if mediation would benefit your particular situation, Hello Divorce can help answer that question. Schedule a free 15-minute consultation with an account coordinator to learn about our flat-rate mediation service as well as other services we offer. At Hello Divorce, our goal is to help people like you exit your marriage gracefully with your dignity, self-esteem, and finances intact.