The Pros and Cons of a Mediated Divorce

Once the decision to divorce has been made, the decision about how to go through the divorce process needs to be addressed.  One way is through mediation.  Many of you may be asking, “What exactly is mediation?”

What is mediation?

Mediation is a conflict resolution process that involves a trained third party (called a mediator) who works with both parties in a dispute to resolve issues by finding out concerns, clearing up misunderstandings, and reaching a resolution by compromise.

A mediated divorce has many advantages, but there can be certain drawbacks as well.  Let’s walk through the possible Pros and Cons of a mediated divorce versus a litigated divorce in the courtroom.  We’ll start first with briefly describing the litigated divorce process.

Litigated divorce

In a litigated divorce, the court process can be lengthy and time-consuming.  You are at the mercy of the schedules of the court and the divorce lawyers, so there may be delays.  As you wait in the courtroom for your case to be heard, you are paying your lawyer whether or not progress is made in your case.  Once you do go before the judge, you may only have a few minutes to testify in your case.  Plus, you have little control over the outcome.

The effect a litigated divorce has on you and your family can be extremely stressful and unpleasant.  It is an adversarial system by nature, and many negative emotions can be triggered by the hurtful things said in the courtroom.  And remember, court proceedings and filings are public record, there for anyone to see (including your family and co-workers).

Mediated divorce – PROS

• Less expensive: A mediated divorce can cost from 1/10 to 1/3 of what a litigated divorce can cost you.
• Faster: Many courts are backlogged and your case may not come up as quickly as you would like.  With mediation, you manage the scheduling, so the time and the cost will be more predictable.
• You have control: You and your spouse determine the schedule (instead of the courts and the divorce lawyers), decide which issues to discuss (and in what order), and have control over the outcome.  The two of you will make decisions you both can live with, instead of someone else deciding what the arrangements will be.
• Flexible: You can take time to consider how a decision will affect your family. You can even try out different arrangements before you sign the final agreement.
• Confidential:  Mediation sessions take place in a private room and the proceedings are confidential.
• Less stressful: It’s easier on the children and healthier for the family as a whole when divorcing spouses can agree to compromise instead of demonize.
• Stresses the positive: The goal is to work out a fair and workable solution instead of tearing each other down to “win”.
• Less likely to need settlement modifications: A study of 150 divorce cases in Linn County, Iowa* found that re-litigation was 7-8 times more likely in cases that did not use mediation initially.  This indicates that people who mediate are making lasting decisions or are making adjustments to the divorce settlement themselves instead of through the courts.

  * Sixth Judicial District Family Mediation Program, UPDATE – March 2004

• Litigation is still an option.  If you are unable to reach a mediation agreement, or you are unhappy with the outcome, you still have the right to go to court.

Mediated divorce – CONS

• Possibility of power imbalance:  Mediation can be difficult if one party feels disempowered – for example if one spouse has all the financial resources, or can articulate better, or is intimidating in some other way.
• Possibility of an inexperienced or biased mediator: Mediators are trained professionals, but as in any profession, their abilities, experience, and biases differ.
• No legal advice: Since the mediator is a neutral third party, he or she cannot advise either spouse for or against any particular course of action.  This is true even if the mediator is an attorney.  If legal advice seems necessary, the mediator can only tell you where to find additional information or suggest you seek legal counsel. 
• Waste of time and money if it doesn’t work out: If it becomes clear that mediation is not working (perhaps one or both parties are unwilling to make concessions) and is discontinued, the costs incurred are not refundable.  And of course, you can’t get that time back. 

If after weighing the Pros and Cons of a mediated divorce you would like to explore this option, you can seek divorce advice from a professional organization dedicated to helping people through the divorce process in a positive and empowering way.  Your local Divorce with Dignity professional can help you decide if mediation is the best option for you.  If you decide to go this route, they can also help you to find an experienced and reputable mediator.

Mediation is all about empowerment – you and your spouse are in control of the decisions, and it is also up to both of you to come to the mediation table ready to find equitable solutions.  The focus is not on assigning blame or bringing up old arguments, it is about moving forward.  If you can do this, you will save yourself the trauma, grief, and anger that are typical in a litigated divorce.  And save yourself some time and money as well.