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Divorce Mediation – Advantages and Disadvantages

Man and woman sits at a desk with hands clasped. marital problems, conflicts and stubborn concept

“Divorce Mediation” sounds scary. The word “divorce” itself brings up negative reactions – after all, it’s always a stress-filled experience, and even in the “best” cases there are tremendously negative emotions associated with it. Taking the step to meet with a Mediator can feel scary and negative because it’s moving forward in a process that involves both immediate and future emotional pain. But once the decision has been made to end a marriage, Mediation is almost always the best way to proceed. The advantages are obvious: saving tremendous amounts of time, money, and minimizing fighting. Specifically:

Time: the divorce process always takes time; even when things go smoothly and peacefully. Court documents can take months to be processed. Creating, reviewing, and executing the separation agreement is time-consuming, and when there’s fighting that makes things go much slower. Most people going through a divorce wants it to be done as quickly as possible for the benefit of their emotional health and to be able to move forward in life, and mediation is specifically designed to be as quick and efficient as possible.

Money: in a contested divorce where each spouse hires an attorney to fight on their behalf, the legal fees for generally start in the $5,000-$10,000 range and depending on the complexity of the case and how long the fighting drags out, rapidly climb. According to Martindale-Nolo Research (a leading legal research company) average divorce costs end up around $17,100, and it’s not at all uncommon to see cases where the legal fees are much higher. And this is for EACH SPOUSE. In mediation, there is only one fee that is generally split between the spouses, and the average mediation takes 7-12 sessions, with a total cost of literally 1/10 of what it would cost to hire lawyers to fight.

Minimizing Fighting: this is most important when there are kids involved – when a divorcing couple has kids together, they will be in each others’ lives forever as co-parents regardless of how they feel about each other. So having a relationship that minimizes conflict and negative emotions and instead highlights cooperation and peace is obviously better. The divorce process sets the stage for what this relationship will be like for the rest of the couple’s lives. If the divorce is bitter, angry, and based on fighting, that will likely be the tone of the relationship going forward. If the divorce process is more collaborative and less contentious, that enables the couple to have a post-divorce relationship that follows in that path – peaceful, reasonable, and even possibly positive. This is obviously so much better for the kids, and is also so much better for the emotional health of the divorcing couple.

Those are the obvious benefits to Mediation – saved time, money, and improved emotional health – three things that almost all people value highly. There are also some benefits that are less obvious:

Greater control over the process/result: when the divorce process is starting, each spouse begins to develop a list of “wants” – desired outcomes. It may seem that going through a combative process in court is the most likely way to achieve some of these wants. But when entering the court system, both spouses are giving up a large amount of control over the outcome – if the courts decide something, it’s binding, regardless of if you’re happy about it. And very often the court may end up making a decision that neither spouse is happy with – but at that point it’s too late. Mediation keeps the control with the couple – the only decisions that are made in mediation are those that BOTH parties are happy with – and it can always be renegotiated later if it makes sense to do so.

Personal attention: courts are overwhelmed with work, and judges don’t always have the time or patience to really get to know you, your situation, and understand what solution may work best for you. They make decisions based on laws, rules, and formulas, many of which may not make sense for you, but will be applied to your case anyway. In mediation there are no such constraints – it’s all about you, your needs, and finding solutions that work for you.

Creativity: Along the same lines, there is not much room for creative thinking in court decisions. In mediation, creativity is a major part of the process – for example, “trading” is something I use constantly in mediation, where a spouse gives up more in areas he/she doesn’t find important, in exchange for receiving more of something that is important – this is something that is unavailable if decisions are left in the hands of the court.

So the question then is: why do so many people choose not to mediate, and instead hire lawyers to fight? I’ll write about that in my next article.

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