In our last post we talked about how to wrap up a court case after reaching an agreement in mediation. Today we will look at which divorcing couples can use mediation successfully and which couples should think twice before choosing the process.

Many people would like to try mediation but wonder if they are good candidates. The truth is that most divorcing spouses have a good chance of resolving their disputes through mediation. If you are avoiding mediation simply because you and your spouse do not get along, you may want to reconsider.

Very few divorcing spouses get along well with each other. Most have some history of conflict or poor communication. Add to this the fact that resolving divorce issues often means sorting through sensitive information with potential triggers everywhere, and the prospect can be daunting indeed. A good mediator can help you work through difficult emotions. If negativity begins to overwhelm productive discussion, the mediator will call a break or suggest a caucus.  Turning everything over to a judge might sound like a good way to avoid confrontation, but court procedures have a way of increasing feelings of powerlessness, loss of control, and anger. Letting your attorneys do the negotiating can also result in higher costs.

The key requirement for mediation success is that both parties must have a desire to resolve issues amicably. If animosity is so high that collaboration is impossible, progress will be slow or non-existent. If you are locked into a longstanding pattern of hostile and unproductive communication, you may want to work with a therapist or divorce coach before attempting face-to-face negotiation. That said, there are certain circumstances that usually make the standard mediation process inappropriate.

When Mediation May Not Succeed

While many spouses can work through conflicts to get positive mediation results, there are a few situations where the standard mediation format is generally inappropriate. These include the following:

• Domestic violence or abuse. When one spouse is afraid of the other, the fearful spouse will feel constrained and will not be able to negotiate freely.
• Accusations of child abuse. A valid accusation of child abuse presents a similar situation to domestic violence. If the accusation is not valid, it represents a serious breach of trust.
• Hiding assets or income. Hiding critical information, like assets or income, seriously erodes trust. Formal discovery will generally be necessary in such cases.
• Substance abuse or serious mental disorders. A spouse suffering from substance abuse, or a serious mental disorder, may not have the clarity of mind required to participate effectively in mediation.
• Serious power imbalance. If one spouse has all the power, because for example, that spouse controls all the assets and income, there may not be a true equal footing for negotiations.

If you are coping with one of these situations, be aware that going to court is not always the solution. When circumstances make the standard mediation process inappropriate, going to court can also be problematic. Litigation is intimidating and does not always provide sufficient safeguards to ensure an equal playing field. It is also expensive, which gives an advantage to a more economically powerful party. This can be true even when courts try to create a more equitable environment.

There are certainly some situations where going to court is the best choice. In some cases, however, a modified form of mediation with additional safeguards could be the better alternative. Be sure to consult with an experienced family law attorney before deciding how to proceed.

Modified Mediation

Some mediators offer a mediation process that includes extra structure and safeguards. If your spouse has a difficult personality, has more power than you, or if the two of you have simply never been able to approach conflict productively, then additional structure may help. If you wish to try mediation despite something like a power imbalance or past abuse by your spouse, adding safeguards that improve safety and confidence is critical.

Look for a mediator who has experience working with couples in your situation and ask how they might be able to adapt their process appropriately. Experience is key. Challenging scenarios are stressful for mediators as well as for participants. Find a mediator who is battle-tested and can understand and anticipate potential triggers and landmines.

Good mediators should always lay out ground rules and insist that participants stick to them. They should also strive to keep participants focused on defining issues and making proposals and counterproposals. A mediator can add structure to the process through some or all of the following:

• Offering pre-mediation coaching or encouraging parties to seek such coaching.
• Building in more breaks and caucuses.
• Taking steps to counter any pre-existing power imbalances between participants.
• Encouraging attorney participation whenever it seems appropriate.
• Conducting the mediation by zoom rather than in person.
• Conducting mediation by “shuttle diplomacy,” where the mediator only meets separately with each participant.

In our next post, we will discuss how complex divorces can also be resolved in mediation.  Meanwhile, if you want to know more about any aspect of mediation, or if you are ready to start mediation, contact one of our experienced mediators today.