Is Divorce Mediation the Right Step for You?

Few couples expect that their marriages will end in divorce. However, depending upon the source of the statistics, the divorce rate in America for first time marriages is between 33% and 50%. Divorce is a very emotional time during which each spouse is required to make decisions regarding the division of property, spousal support, child support, and parenting responsibilities.

Resolving these issues in contested litigation is usually time consuming, expensive, and emotionally draining.

There are a number of surveys that show that divorcing couples who choose to resolve these matters through mediation instead of litigation experience a number of positive benefits.

Compliance by both parties with the terms of the mediated agreement is generally higher than compliance with terms imposed by a court. Mediated parenting schedules are usually followed with greater consistency and parental cooperation in making child rearing decisions is typically higher with parents who mediate instead of litigate.

Another benefit of resolving divorce disputes through mediation is that mediation is often faster and less expensive than litigation. In addition, mediation allows the parties to formulate creative solutions that a court does not have the legal authority to impose on the parties.

In light of these benefits, when should mediation be considered by divorcing couples in lieu of contested litigation? The following five questions should be considered when deciding whether to mediate or litigate your divorce.

1. Are both spouses willing to resolve their disputes through mediation?

Mediation is a voluntary process that requires the willing participation of both parties in order to succeed. The prospect of the parties having a successful mediation is improved if they are willing to compromise and negotiate with the other.

2. Do both spouses want to remain amicable after the divorce?

This decision can be based upon the parties' values or practical considerations. For example, some parents will forgive the other's unfaithful behavior so that both can work together to rear their children. If the spouses can control their anger and animosity toward each other, it is more likely that the parties will resolve their disputes in mediation.

3. Do both parents believe the other is a good parent?

Two parents working together improves the likelihood of their children overcoming the hurt, anger, and depression of their parents' divorce. If one parent holds a strong belief that the other cannot properly parent the children, the parties may not be able to reach a parenting arrangement acceptable to both.

4. Do both spouses trust that the other will disclose all material information during the mediation?

Mediation involves, among other things, the voluntary exchange of property, debt, and other financial information. If trust, deceit, or lying were issues in the parties' relationship, the party who was the object of the deceit may not be willing to negotiate with the other.

5. Can both parties make voluntary decisions in the face of disagreement?

If one spouse has significantly less bargaining power than the other or is easily intimidated by the other, it may not be possible for the intimidated party to make free and voluntary decisions during the mediation. Likewise, if physical violence, emotional abuse, or alcohol or drug abuse were issues in the marriage, mediation may not be appropriate.

Now that you have considered the benefits of mediation for divorcing couples, in comparison to the costs and risks of a contested litigation, we hope that you will consider retaining Brown, Brown & Young as your mediation firm.