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When to Avoid Mediation

In certain situations, divorce mediation is not in your best interest.

When to Avoid Mediation

Take our “mediation-elimination” quiz. If you answer any of the following questions with a “no,” mediation is not for you:

  • Do we both want this divorce?
  • Do I know what our assets and debts are?
  • Are we communicating?
  • Can we both be flexible?

Although wonderful in concept, mediation could be a disaster in certain situations. Even if you passed the “elimination quiz,” take time to review the following list. As you consider your response to the questions, you might conclude that mediation is not for you:

Red Alert

If you do not know the value of assets in your marriage—pension or retirement plans, a business—or your spouse's income, mediation is probably not for you. The reason: The mediator lacks any authority to make one of you reveal assets to the other. An attorney lacks that authority, too, but he or she can go to a judge. The judge, in turn, can render a ruling requiring your spouse to reveal assets. The judge can penalize your spouse for refusing to cooperate, or worse, for lying. The mediator has no such power and does not give legal advice to either party.

Red Alert

Many believe that mediation is not a fair process for women. The reason given is that some men are able to bully the women during the mediation process, and some mediators will not be strong enough to counter the bullying or apprise the woman of her rights under the law. If you are a woman (or a man who lived with a bully for a wife), and this scenario rings true, be sure the mediator is aware of your concerns. Alternatively, you might decide this process won't work for you.

  • If you and your spouse are not talking, mediation sessions are not the time to start, and mediation is probably not for you. Remember, the mediator is not a marriage counselor but rather a conflict resolution specialist whose job it is to help the two of you address and resolve issues. If you're not even talking, there's not much the mediator can do.

  • If you or your spouse harbor extreme feelings of anger, mediation probably won't work.

  • If one of you does not want the divorce, mediation doesn't stand a chance.

  • If you're trying mediation but you feel the mediator is siding with your spouse, you should stop the process. Maybe you're being paranoid, but it doesn't matter. When one of you has lost confidence, you should each retain a lawyer.

  • Mediators do not have “attorney-client” privilege in many states. That means that anything you tell the mediator can later come out in court. If you have secrets that impact your case, you should probably avoid mediation (or keep the secrets to yourself).

    Mary Pauling found herself in that situation not long ago. She and her husband George decided to use mediation on the recommendation of friends—it worked for them. Each was in love with someone else, and there were no hard feelings. They had a four-year-old son, Evan, and they'd decided Mary would have custody. The only issue was the amount of support George would pay.

    At the second session, before George arrived, Mary confided to the mediator that Evan was actually her boyfriend's son, not George's. The mediator felt obligated to share this information with George because it would have enormous impact on whether he even wanted to see Evan again, let alone provide for his support. Mary left before George arrived and hired a lawyer the next day, but that was a day too late. Had Mary gone to an attorney in the first place and made the same confession, the attorney could not have revealed anything without her consent.

  • If your case is very simple, it might not pay to use a mediator because attorneys will have to review the agreement anyway, and you might be better off just starting out with those attorneys. Remember, mediation is useful when there are unresolved issues between you and your spouse. If there are no issues, you might as well go straight to lawyers to draft the agreement.

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