When divorce mediation is most — and least — likely to work

| Oct 25, 2016 | Divorce |

Mediation is getting to be a very popular way of settling divorce cases outside of court. Not only is it more economical and efficient than litigation, it also gives the parties more control over the outcome of their case, which leads to more sustainable agreements.

For these reasons, mediation is a great option. However, it doesn’t always work. During the mediation process, the parties (and their lawyers) negotiate the terms of their divorce — such as property division, child custody and alimony — with assistance from a third-party neutral mediator.

The mediator does not make any decisions, so if the parties cannot reach an agreement, then the mediation fails and litigation is often required to finalize the divorce. The good news is that mediation is successful in many cases, especially when:

The parties are both okay with the decision to divorce.

If one party does not want the divorce, he or she may be unwilling to negotiate and litigation may be necessary to unilaterally end the marriage.

The attorneys have experience with mediation and believe in the process.

Mediation has the greatest chance of being successful when everyone involved is committed to the process.

The parties value staying on good terms after their divorce.

Parents who must continue to raise their children together usually see the value in working cooperatively to end their marriage.

On the other hand, mediation is less likely to be successful when:

There is blame, abuse or intimidation in the marriage.

These issues make mediation more difficult because it can give one party an unfair upper-hand in the process.

One party is trying to hide assets or take advantage.

In these cases, litigation may be necessary to expose the hidden assets and to make sure that the innocent party ends up with a fair settlement.

The parties are not willing to compromise.

Compromise, at least to some extent, is usually necessary in order to reach an outcome that both parties can agree on.

While these factors can make mediation more difficult, it does not make the process impossible. It is always possible to reject unreasonable demands during mediation and decide to take the case to trial at any time.