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Will mediation work for my divorce? There are so many misconceptions about Consensual Dispute Resolution (CDR) processes (also commonly referred to as “Alternative Dispute Resolution (ADR)”) in general, and mediation in specific, as it relates to divorce. When a CDR process goes well, mediation is touted as the magic solution for divorce. When it doesn’t go well, mediation may be seen as a “waste of money and time.”

So how can you avoid the pitfalls of a “mediation gone bad” before you even start your divorce? Conduct a reality check.

Do both parties have established healthy boundaries?

Mediation requires both partners to act in good faith, respecting each other’s privacy and boundaries. Unlike in a contested divorce, there is no judge to order that either person stop doing certain acts by issuing restraining or injunctive orders. The mediator is neutral to both and does not have the legal powers of a judge.

If you are both respectful of each other’s privacy, mediation may be a good option. If your spouse keeps entering your home while you’re not there, or has broken into your Facebook account, mediation might not be the best fit, and you may need to get a judge involved.

Are both parties committed to cooperation?

To be successful in a CDR process, you must both see a value to resolving without the court interfering. If either spouse refuses to cooperate, mediation will not work.

Understand that cooperation does not mean “giving up” or “giving in.” It does mean that both spouses are willing to work together to find answers that they can both accept. Most of the time, spouses start with different ideas of how to resolve. It’s the mediator’s job to help bridge those differences to reveal a third option that you can both accept.

Sometimes, one or both spouses might be unwilling to cooperate at the beginning. This is normal. After a few court hearings and some legal fees under your belts, you may both be ready to reconsider a more cooperative, out-of-court approach.

Is there a lack of trust? This is not a deal-breaker!

Trust is difficult to earn and easily broken, especially in an intimate relationship. Mediation may not be the best fit when there is extreme distrust by one or both spouses. However, certain CDR processes may eliminate the need to trust what your spouse discloses, or what he/she says during the process. In a collaborative divorce process, for example, you each have your own lawyers and neutral financial professionals to verify the information shared. A lack of trust makes it much more difficult, but not impossible if you work with the right resources.

Is there a willingness to make full financial disclosures?

In a divorce, both spouses are required to disclose specific financial information to each other. This allows for informed and a judgment (final agreement) that will be binding and fully enforceable. If your spouse is unwilling to share financial information unless ordered to do so by the court, mediation may not be a safe option. Again, this may change after a few court orders and maybe some sanctions (financial penalties) issued against her or him.

Are you both able to empathize with each other?

While empathy is not the first thing people think of when a relationship comes to an end, it is key to a successful out-of-court resolution. If either spouse is unable to step in the other person’s shoes, so to speak, it’s impossible to create solutions that have value for that person (how can they say “yes”?).

The most productive and efficient mediations involve couples who still care about each other, even though the love is gone. When one person is unwilling or unable to appreciate the pain their spouse and their children are experiencing, or cannot get beyond vilifying his or her spouse, a successful mediation is unlikely.

Do you understand that communication is key?

Communication is often a big challenge for divorcing couples. Combine that with fear, anxiety, anger, and distrust that occurs, for example, when one spouse withdraws a large sum of money from the joint bank account without first discussing with her spouse, and it is a recipe for a high conflict, expensive divorce. Conflict tends to increase when parties do things without first discussing them with their spouse (emptying a bank account, cancelling the other person’s health insurance, taking the kids out of state for two weeks). As conflict goes up, legal fees go up, trust deteriorates further, and an amicable resolution becomes near impossible.

Remember the mediator does not have the legal powers of a judge and cannot make restrictive orders. Managing communication and deciding together on financial, legal, and family matters will set you both on a smoother path towards resolution.

Do both spouses have realistic expectations?

It is important that both spouses understand their goals and what the law provides and does not provide. If you think that the judge will order your spouse to pay for your adult child’s college education, you will be disappointed. If you think that your spouse will be more flexible in a mediation, even though he has been a control freak throughout your marriage, you will be disappointed.

Mediation doesn’t change the law and doesn’t change spouses’ attitudes. It does provide an opportunity for spouses to have a say in the outcome and to create agreements that would not have been available in a contested court case. This requires an agreement between both spouses.

Will mental health issues interfere with the ability to make decisions?

If there is a chance that a mental health issue, or medications being taken for such issues, it might impair that person’s ability to communicate concerns and goals, understand legal and financial concepts, or to actively participate and negotiate in the mediation sessions, mediation is probably not the best option. Both partners must have the ability to participate productively and make decisions. You may want to consider a process in which that person has a guardian and/or legal advisor.

Are there sufficient financial resources?

There is no crystal ball when it comes to determining what divorce process will get you the best results. Given the traditionally high cost of a litigated divorce in California—which can run in excess of $50,000 per person when attorneys are retained—many people literally cannot afford to litigate. The income just isn’t there.

If there is high conflict—whether due to the spouses’ behavior towards each other or because of complexity of the case—the divorce will be expensive, no matter what process you choose.

When considering a divorce process, remember to factor in the possibility that you may not reach an agreement on all or some items. If that happens, you will need funds to bring those issues before a judge to resolve them. Consider your budget. If you do decide on a CDR process, consider your chances of success and what you can do if you cannot co-create agreements.

About the author

Diana L. Martinez is a divorce mediator and Faculty Trainer with the International Academy of Collaborative Professionals, and an experienced collaborative divorce lawyer handling cases throughout California, with offices in Corona, Riverside, Newport Beach and San Diego.

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