More often than not, a separation gives rise to feelings of anger and frustration in the couple, which is why it can take a long time to resolve divorce cases.
Several couples choose mediation to avoid the long duration and mounting costs associated with a traditional divorce trial. It also spares them stressful court hearings, discovery, and blame games.
While mediation is a great way to resolve differences between couples and arrive at a mutually-beneficial agreement, it may not be suitable for everyone.
In this post, our experienced St. Louis divorce mediation attorney explains when divorce mediation can and cannot work.
Let’s start with the basics.
What Is Divorce Mediation?
Divorce mediation is the process of dispute resolution used by divorcing couples. It works with the help of a trained, neutral third-party, who conducts discussions and resolves common issues. Mediation is less traumatic and less expensive than a traditional divorce trial, while also proceeding relatively faster.
Mediation allows the separating couple to make decisions on crucial matters, which enables them to retain control over their divorce proceedings. In court trials, the judge decides and hands out verdicts, which may or may not please both or either parties.
The process of mediation also helps couples find ways to put their emotions and differences aside, find common middle ground, and communicate amicably with each other. With the help of a skilled mediator, even the most pressing issues can be successfully resolved.
What Is the Role of the Mediator?
A divorce mediator is trained to and works with the aim of helping couples with dispute resolution. The mediator may or may not be a licensed attorney, and is tasked with the following:
- Explaining how the legal system works
- Enabling uninterrupted communication between the divorcing parties by allowing each one time to recount their side of the story
- Asking parties to repeat or elaborate a point, when necessary
- Probing both parties to facilitate clearer communication
- Shedding light on how matters may be perceived by lawyers or judges
- Facilitating unbiased discussions on spousal and/or child support
- Finding and presenting options for resolving issues
- Recommending third-party experts for services such as appraisals, when necessary
Which Can Issues Be Resolved through Divorce Mediation?
Couples can resolve almost all their issues through divorce mediation. Depending on your unique circumstances, however, the complexity of your case may vary. The issues that will find resolution include, but are not limited to:
- Formulation of a workable parenting plan that clearly states the responsibilities of each parent, along with the time-sharing details for flawless co-parenting after the divorce
- Stipulations of child support that details the financial support each parent will provide the children
- Division (or equitable distribution) of marital assets and liabilities in accordance with the state laws
- Determining the amount of alimony/ spousal support/maintenance/spousal maintenance and the duration of receiving it
Apart from the above, a divorce mediator can also help couples resolve issues related to caring for the family pet, the religion to be followed by their children, and so on.
When Does Divorce Mediation Work?
Divorce cases usually involve couples who are resentful of each other. Mediation can minimize the conflict, but it will work only if both parties are willing to communicate and share some common goals. Going to divorce mediation can be a great decision in the following situations:
a. Both Parties Want a Divorce
Contrary to popular notion, not all divorces are contentious. In some cases, both parties want to separate willingly. If you and your spouse agree about going your separate ways, you can either file the petition together or one spouse can file it with the other’s consent. When spouses mutually want to divorce, it becomes easier to find a common ground to resolve divorce-related issues through healthy negotiations.
b. There Are No Domestic Violence Charges Involved
The mediation process requires both spouses to meet face-to-face several times in the presence of the mediator, and attorneys, if involved. Couples with a history of domestic violence are always suggested to skip mediation as it becomes difficult for the mediator to keep both parties on track. The mediator may also have a hard time determining if the victim has agreed to the settlement out of their will or due to fear of the abuser.
c. Both Parties Are Ready to Talk about Their Finances Openly
It isn’t uncommon for one spouse to be more aware of the family’s assets and liabilities than the other. For mediation to be successful, it is important that both spouses be willing to disclose sensitive financial information to each other. This includes details of bank accounts, stocks, property, retirement funds, pensions, and other assets as well as debts. Both parties need to be transparent and truthful in their declarations.
d. Both Parties Agree to Custody Terms
A lot of parents put their differences aside for their children’s sake, but sometimes things go awry despite the best intentions. Divorce mediation is an effective way to discuss and decide mutually-agreeable co-parenting terms. This includes deciding who will care for the children on a day-to-day basis, who will pay child support and the type/frequency of visitation with the non-custodial parent. It is crucial to keep the best interest of the children in mind when making these decisions. In case of any disagreements in this matter, the mediator will offer suggestions on finding a resolution without approaching the court.
When Does Divorce Mediation Not Work?
It is best to skip mediation and work with a divorce lawyer if:
a. One Spouse Is Mentally Immobilized
Mediation allows the spouses to retain control over the divorce-related decisions and both parties need to make decisions that are in their own interests. Both need to be mentally fit to be able to make sound decisions. If you think your spouse is incapable of doing so due to any kind of addiction or a mental condition, then you should work with a divorce attorney.
b. One Spouse Has a Restraining Order against the Other
This usually happens in cases involving domestic violence. An active restraining order can make mediating impossible. Also, in some cases, one party may feel too intimidated to express their needs, fearing retribution from the other party. If you are scared for your safety, you’re better off working with an attorney instead of using mediation.
c. One Spouse Is Hiding Assets
Mediation cannot work without transparency. If you suspect that your spouse is hiding assets or debts from you or has fudged details about their business dealings, and you have supporting evidence, choose a divorce lawyer over mediation. Lawyers know how to file motions with the courts to coerce your spouse into revealing each and every necessary document needed to see if important financial information is actually being concealed.
d. You Don’t Agree on Custody
If you and your spouse disagree on the terms of your children’s custody, and if allegations of abuse or neglect are involved, you will most certainly need court intercession. The judges or jury will then determine an arrangement that is in your children’s best interests by considering your state’s custody guidelines.
e. One Spouse Isn’t up for Mediation
Mediation is a voluntary process where both parties should be willing to undergo. If you want to give mediation a try, but your spouse does not, you’ll need to try another divorce resolution procedure.
Mediation allows the splitting couple to be more in control of the matters most important to them, and make sound decisions for their future. It is especially beneficial when children are involved as both parents can continue to make joint decisions regarding child custody and support. Lessons from the mediation sessions can serve as the foundation for future communications between the couple. Due to all these reasons, mediation settlements tend to have a higher compliance rate compared to court-ordered divorce verdicts. If you are headed for divorce and are wondering if you should start looking for a mediator or a lawyer, the above information will certainly be helpful.