For certain people, mediation is an appropriate way to reach an agreement. The best candidates are those who are willing to negotiate directly with their spouse to save money and heartache and get on with their lives. They are people who understand the value of avoiding expensive, heated litigation and are willing to give something up in order to settle quickly and as amicably as possible. Typically, they value the fact that, even in their darkest hour as a couple, they can sit down and talk face to face instead of interacting solely through their attorneys. Mediation usually takes place in a friendlier setting than legal meetings, although if there are hard feelings because of a betrayal, there can be considerable tension. But, more might be accomplished in a relaxed environment with the aid of a caring mediator.
As a process, mediation is also more flexible than the legal protocols that guide lawyers and courts. For example, you can set the pace of mediation sessions to correspond with your own emotional and logistical needs. After you enter the legal system, deadlines and delays come with the territory, imposed not just by individual judges, but also by the system's mandate to “move things along,” or more likely, slowed by the huge backlog in the courts.
Finally, mediation might sometimes work better, even for the most calculating among us. Because mediators usually meet with both spouses at once, it's easier during these sessions to grasp just where the other is coming from. After all, you cannot read body language or facial expressions when your only communication comes from the whir of a lawyer's fax machine. This might be a plus for those who can “just tell” when their spouse is bluffing or when he or she won't budge.
When Mediation Works Best
Despite the advantages, mediation is not for everyone. The system works best when you and your spouse have mutually agreed you want a divorce, when each of you is fully informed of the other's assets and debts, and when, despite some disputes, you're both flexible and eager to work it out as amicably as you can.
Mediation also works best when you and your spouse are convinced of the mediator's impartiality. One lawyer tells us the most common reason clients give for having left mediation is the feeling that the mediator had begun to favor the other spouse.
Mediation is not binding. If you are not satisfied with the outcome of your mediation, you might have wasted some time and money, but you can start all over by going to court.
Mediation also works best when there are no urgent needs that must be resolved with a judge's help. For example, if your spouse has cut off support and refuses to reinstate it, you can't afford the luxury of meeting once a week with a mediator to resolve the issue. You need a lawyer to race into court and ask a judge to order your spouse to resume supporting you now.
Finally, mediation works best when both individuals have had a relatively equal relationship. If one member of the couple has, historically, dominated the other, it may be more difficult for both to participate in the give-and-take of mediation.