Truths and Myths About Divorce Mediation

shutterstock_134380532When clients visit my office for an initial consultation about their impending divorce, they invariably ask about the benefits and pitfalls of mediation.  Over the last several years, the use of alternate dispute resolution in divorce and other litigation matters has increased in popularity.  This is due to the widespread belief that staying out of Court is a cheaper and faster way to resolve most legal disputes.  While this is generally true and while mediation may help parties reach that goal, it is not the answer in all situations.  Let’s examine some of the myths and truths about mediation:

1)      Mediation Will Save Me Money – While it is true that the cost of bringing a divorce case to trial can be quite expensive, attending mediation is not always a cheaper alternative.  In a mediation setting, the parties pay a mediator a designated hourly rate.  Depending upon the number of sessions that the parties meet with the mediator and hours that the mediator spends reviewing their case and/or drafting a settlement agreement will determine the ultimate cost.  In addition, parties are also advised to hire their own independent lawyers to review any proposed agreement arising out of mediation on each party’s behalf which is another cost.  Moreover, if the mediation proves unsuccessful, the parties are back at square one, facing possible litigation, after having already spent the cost of mediation;

2)      Mediation Will Get My Divorce Resolved Faster – Many clients believe that mediation is the key to a quick resolution of their divorce.  This is certainly true if both parties are amicable, there is minimal property to divide and both are like-minded in what constitutes a fair division of that property.  In fact, if these factors exist, mediation is not even necessary – the parties can resolve their issues directly with the limited assistance of counsel.  In most instances, however, parties are not like-minded (which is why they are divorcing in the first place), do not have minimal property issues and are not amicable.  This is not to say that most divorces will not resolve – they usually do by mediation or by settlement at some other point – just that going to mediation alone, will not in itself speed up the process and in some instances can slow it down if it proves unsuccessful;

3)      Mediation Is A Less Adversarial Way To Get Divorced – The idea that mediation is a gentler, less adversarial way of getting divorced is true.  That is, if it works.  Again, if both parties are committed to the mediation process and determined to resolve their divorce in this manner, they have a greater chance of success than those who believe that mediation alone will make them gentler and less adversarial. Those who think that mediation in and of itself will make the differences that caused the breakdown of the marriage magically disappear and will allow the parties to agree to a distribution of assets for the greater good of the family are often sorely disappointed.  Mediation by its nature requires parties to agree in order to work and if they are not able to agree, then mediation is not the answer;

4)      The Mediator Replaces The Judge– Some clients have the false notion that the mediator essentially operates as a private judge and will make decisions for them to resolve their divorce.  This is not true.  Binding arbitration is a type of alternate dispute resolution where parties agree to submit their case to the arbitrator to decide their issues.  It is not the same as mediation.  In mediation, the mediator acts as a facilitator to help parties reach an agreement.  The mediator does not “decide” the case for the parties, and in fact, should remain neutral in helping parties reach agreement.  The potential problem is that if parties do not agree, the mediation does not succeed.

5)      Mediation Helped My Friend So It Will Help Me – One of the most difficult questions that clients pose is why some tool like mediation could help a friend, relative, etc. and not help them.  Clearly, it is understandable how someone would want a simple solution to their divorce that worked for someone else they know.  However, as I routinely explain to clients, each divorce case is unique and must be evaluated on its individual merits.  There is no one-size-fits-all resolution to divorce cases.  Parties are wise to review their options with counsel and take the path that seems right for them – even though it may differ from that of their friend, neighbor or relative.

It is certainly beneficial that clients have a wide variety of choices in trying to resolve their divorce, mediation being one of them.  This takes pressure off the over-burdened Court system and gives parties a modicum of control in a situation where they often feel so out-of-control.  However, before embarking on the mediation path, it is critical that parties fully understand the process and the chances of success in their particular situation.  Hopefully the tips above will at least give parties some issues to consider before moving forward.  What is most important to keep in mind is that most divorces do resolve at some point with or without mediation.  Getting wise counsel in helping to navigate the system and decide what path right for you in your matter is most critical in saving time, money and aggravation

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Posted in Divorce
13 comments on “Truths and Myths About Divorce Mediation
  1. John says:

    Thanks for sharing this. I think the last point is a really important one to end on. At the end of the day, every divorce case is a situation unique to those people, so if something worked for a friend or acquaintance during their case, it may very well not be as applicable for yours.

  2. I agree with you that meditation will not be an automatic fix. However, I do still think that it is one of the best options. Ideally, you would be able to work out the terms of a divorce with your spouse and lawyer. Still, it doesn’t hurt to have help, and that is what meditation is for.

  3. I am glad that you clarified that a mediator doesn’t replace a judge. They are just there to help make the divorce go smoothly. It seems like it would be smart to talk to your lawyer about what to expect from meditation if you don’t understand the process.

  4. Thanks for the advice about choosing to use mediation in a divorce or not. I think you made a good point when you said that mediation is not necessarily the fastest route. If a person and their spouse can’t agree on anything, then who knows how long that could. If they choose to hire lawyers, a decision will have to be made if it goes to court, right?

    • Jennifer A. Brandt says:

      That is correct, but the good news is that the vast majority of divorce cases settle before ever going to trial. Good legal advice can end up saving you a lot of money in the long-run.

  5. Pam Lassila says:

    I always thought that mediation would save money and time! I can’t imagine how hard it would be to go through all of this. So what is the point of mediation then? Is it just to agree on how you’re going to split things and do custody and then you bring to the judge to approve? That would be nice in a sense to work things out. But if you have a difficult spouse then I would probably skip the mediation process.

  6. John Mahoney says:

    I liked when you talked about how both partners need to understand the process when getting divorced. I can see that making sure you find someone that can walk you through the process can help you have a better idea and know what to do. It makes sense that finding someone with the right credentials can help the process move along faster.

  7. Ivy Baker says:

    I like that you pointed out that the mediator doesn’t replace a judge. That is something really important to remember when you are going through a divorce. Mediation does seem a good thing to be aware if you are disagreeing with your spouse during a divorce.

  8. Great points mentioned in the article, Jennifer. Just to also add, collaborative law practice has a lot in common with mediation theory and how to find shared interests and shared goals. Divorce doesn’t have to be a zero sum game, this is huge in my way of thinking. If we try to figure out how to approach something so everyone can get as much from the divorce as possible – we have better outcomes, whether its a collaborative law process or mediation.

  9. Basically, mediators are there to serve as a guide to both parties in helping them reach the path to a mutual agreement as you’ve mentioned. That is quite interesting to learn and timely too as my sister is currently having a rough time with her husband and is thinking of getting a divorce soon. I’ll try to schedule a divorce mediation for them so that they can properly reach an agreement and stop the unending stalemate due to both of them being too prideful. If they decide to stay together after the mediation, I’ll probably have them scheduled for a counseling. Thanks!

  10. Zara Brown says:

    Great article about divorced mediation. Definitely some great tips and advice to keep in mind when going through this experience. Divorce is something that is becoming more prevalent in Western society. Hiring a mediator can be a good option.I think it’s useful for many those who are looking for such info,I really appreciate this post. Thanks for sharing this valuable information.

  11. Mediation works when it is done right. Mediation briefs or materials should be complete, persuasive and delivered sufficiently in advance of the mediation so as to allow all concerned a reasonable opportunity to digest them. Of course, know your own materials very well. Be ready to clarify and explain.

  12. Jenna Hunter says:

    I like what you said about how it is possible to stay on good terms with your spouse and remain kind and respectful even during a divorce process. I think that mediation is a good idea to help the process remain civil and go quickly and smoothly. My sister and her husband are thinking about getting a divorce so I will recommend to them that they look into mediation services if they do.

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The Family Law Focus blog provides highlights, updates and insights on complex family disputes including divorce, division of property, and alimony; child and spousal support; child custody; domestic violence; pre- and post-nuptial agreements; name changes; and adoption or termination of parental rights.
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The Editor

Jennifer A. Brandt, of Cozen O'Connor's Family Law practice, has represented a wide variety of clients in hundreds of family law cases throughout her career. Jennifer is a regular legal commentator on national and local television outlets such as CNN, Fox New Network, HLN, MSNBC, Fox29, ABC News, NBC and CBS and frequently writes and contributes to articles in numerous publications, including the Huffington Post, Fox Business.com, The PhiIly Post, Avvo.com, Allparenting.com, The Philadelphia Inquirer, The Philadelphia Business Journal, the National Law Journal, and Main Line Today magazine.
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