When NOT to Use Mediation for Divorce

Putting Divorce on the 2023 To-do List
January 2, 2023

 

There Are Times When a Family Lawyer Needs to Be Called In

by Michael Heath

Using a mediator or collaborative lawyers to assist in ending a marriage has several advantages. The spirit of working together to negotiate a settlement is normally less costly, both financially and emotionally, than the litigation model. The discovery process is also more casual than in a litigated divorce, leading to even less stress. Meetings are never held in court but are instead conducted out of the public eye. As appealing as the mediation method might be, there are a few situations where mediation is not a good fit.

Circumstances Where Divorce Mediation is Not Advised  

If a spouse or couple finds themselves in any of the following cases, they need to consider their divorce disqualified for mediation:

  1. Domestic Violence—this is a dangerous situation where both the spouse and children need to seek protection. Also, the negotiation process could never be successful when one spouse fears or feels threatened by the other spouse. Here a family lawyer should be used and likely the authorities will need to be involved.
  2. Absconding with Children—although it is rare, we have all read stories of a spouse hiding children or taking them to a foreign country with no way for the other parent to get them back. If there is a risk here, then a family attorney should be contacted immediately.
  3. Dissipation of Assets—if it is thought that a significant amount of marital assets is disappearing, then contacting a family attorney right away is advised. Often there is little a judge can do once the money or items are gone.
  4. Mental Health or Substance Abuse Issues—a spouse suffering psychological issues would not likely be able to represent themselves effectively. The same goes for a person who is dependent on drug or alcohol and not in recovery.
  5. Contrarian Position—employing mediation to negotiate a divorce settlement requires a mutual decision. If one spouse refuses to use the method than hiring a litigation attorney is usually the only alternative.
  6. Severe Imbalance of Power—mediators are trained to recognize an imbalance in power and guide the meetings in a way where the playing field is more even. If one spouse feels intimidated by the prospect of negotiating for themselves in a three-way meeting, they could consider the collaborative divorce model where trained lawyers represent the spouses in four-way mediation meetings. However, if one spouse still feels that the power dynamic is still too dramatic for a mediation approach then litigation would make more sense.

Mediation or Collaborative Divorce

The above list may appear to cover a lot of broken marriages and in a way it does. But most breakups are due to a lack of fulfillment or some prolonged unhappiness. When a couple decides to move on to a new destination in their lives, they should consider the divorce mediation model as a way to get there. The solutions-based approach employed in three or four-way meetings is one of cooperation that normally results in a more civilized and less costly divorce.

 

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