Going to court and litigating is presumed to be the standard route for divorce proceedings, but it is not the only option, nor in most cases the best option. With approximately 90% of divorces being settled outside of court, more and more couples are turning to alternative dispute resolution when ending their marriages.
If you and your spouse are considering mediation for your divorce, it is important to make an informed decision as to whether this option is suitable for your individual case by familiarizing yourself with the benefits and drawbacks of the mediation process. For spouses who are reasonable, amicable and in search of a less rigid divorce alternative, mediation is often a very good fit.
Benefits of Mediation
Mediation is a form of alternative dispute resolution in which a neutral third party – the mediator – is hired to work with the spouses in reaching a divorce agreement. “The role of the mediator is solely to find points of agreement and avoid conflict between the parties in hopes of reaching a resolution, but they cannot offer any legal advice to the parties involved,” says divorce Attorney Matthew Dolan of Dolan Divorce Lawyers, PLLC. “It was designed with the intent to allow parties to work through conflicts without having to involve formal legal proceedings and the courts.”
Of the divorce options available, mediation has come to be known as the faster and more affordable alternative. As mediation is accomplished outside of the courtroom, the court’s schedule and judges are not imposed on the timeline or substance of your divorce process, thereby giving you and your spouse more control and flexibility in working towards a resolution. Spouses are able to set their own schedule for mediation sessions and limit the amount of time and money spent on reaching an agreement.
With this control, you and your spouse are also able to utilize more creative divorce solutions. This allows for your divorce resolution to be tailored to your unique situation in ways that are fair, rather than having to adhere to what the law would dictate.
Lastly, mediation can assist in maintaining a good-natured and civil long-term relationship with your spouse as you are not forced through a grueling court battle. This can make mediation especially favorable for couples who have children and want to avoid subjecting them to court mandated evaluations and orders. Parents are afforded the freedom to establish custody and parenting schedules with the potential of improving communication and avoiding future conflicts.
Drawbacks of Mediation
Despite the many benefits that make mediation an appealing option, it is not suitable for everyone and does come with certain drawbacks. A critical aspect of mediation is that the third party mediator cannot provide any legal advice, and is only there to assist you and your spouse in working towards a settlement. As a result, you run the risk of not reaching an agreement. If the negotiations fail, or if you or your spouse choose to abandon mediation before it is finalized, you have to start over and pursue another avenue of divorce proceedings.
With mediation occurring outside of the court, disclosure of information relies on informal discovery and is voluntary in the sense that there are no court orders or subpoenas for information. Consequently, mediation requires transparency from both parties in order to be comprehensive and successful. This can further complicate already intricate financial matters and could potentially result in information being kept hidden or failure to uncover assets.
Lastly, if spouses are unwilling to compromise on certain aspects of the divorce, the final divorce agreement may not be fair. Depending on the personalities involved, a party has the ability to attempt to take advantage of the lack of legal structure and dominate the negotiations. This could result in one spouse accepting an agreement that they do not fully support. Furthermore, unforseen legal issues, for example with respect to financial discovery or custody, could require court intervention. This could cause your mediation, which was expected to be short and efficient, to be drawn out in court.
Moving Forward with Divorce Mediation
Every divorce case is unique and it is up to you and your spouse to decide if mediation is the best fit. If you ultimately choose to proceed with divorce through mediation, it can be helpful to discuss your case with an experienced divorce attorney.
While mediation situations typically do not require you to obtain legal counsel, it may be in your best interest to do so as they will be able to advise you and make recommendations regarding various aspects of the divorce. This can be even more beneficial if you are dealing with important assets and child custody. Furthermore, it is often recommended that you have legal counsel review your divorce agreement before signing, so that they can evaluate the language and provisions of the agreement to ensure that it will protect you in the long-term.
Contact one of our experienced divorce mediation lawyers today to discuss how we can help you and your divorce mediation proceedings.