Once a couple decides that divorce is in their future and start to do their research, they quickly learn that there are different processes to choose for your divorce. In the past 10 years, divorce mediation has become much more common, even for high net worth cases like Jeff Bezos, founder and CEO of Amazon.
The idea of a peaceful, out-of-court process sounds enticing, especially for those who are ready to get it over with, don’t want to spend a lot of money, and are at least civil toward one another.
However, even if you fit in this category, is divorce mediation the best process for you?
Consider the following needs and circumstances:
You actually have things to work out.
This may sound obvious, but there are times when a couple has been separated for so long, never owned a home or other assets, so the divorce is a simple one where paperwork must be filed. In this case, a consultation with a mediator is always a good idea, just to be sure before filing.
Both of you want the divorce.
A mediated divorce is uncontested. It’s very common for one spouse to initiate the divorce while the other is more resistant. If your spouse is very resistant for whatever reason, mediation is not the ideal process. In this case, discernment counseling could be an option.
However, if you or your spouse are 100% ready to move forward with the divorce while one is ambivalent, you will either need the patience to allow your spouse to accept the situation or file for divorce through an attorney to get the ball rolling.
A baseline of trust exists between you.
In CA, an important part of the divorce process is fulfilling the financial disclosure requirement, or FL-140, and transparency is expected in any process you choose, contested or uncontested. However, when it comes to negotiations related to financial matters, you’ll need to trust that your spouse is disclosing all assets and debts on the table.
It cannot be negotiated if it isn’t brought to the table. If you believe that your spouse is hiding assets, mediation may not be the right avenue to resolve your divorce issues.
You are both capable of advocating for yourselves
Once you are in the mediation room, it will be up to you to be heard and make proposals to your spouse. Your mediator’s job is to facilitate this process, but the mediator cannot make decisions for you. While a good mediator will ensure that the process is fair to reach an equitable resolution, the mediator cannot advocate for one person at the expense of the other.
While many are enticed by the mediation process, they don’t realize that there is no personal advocate in the room with you. You must prepare for mediation ahead of time – just like you would in a job negotiation.
It can’t just be about “getting it over with”.
Don’t underestimate this important factor. Sure, mediation can save tens of thousands of dollars from hiring your lawyers and going to court. However, if you have an addicted or abusive spouse, let’s say, and you just want to get it over with – you could end up giving up the farm just to get out of the marriage (see above about advocating for yourself).
Mediation is also an opportunity to take the time and create a communication and logistics plan that addresses all your children’s needs, making for continued positive relationships with your children at the forefront.
Ultimately, if your situation meets these criteria, you are well-suited for the mediation process, and can feel assured you and your family will benefit. If mediation is not right for you and you decide that you need to seek the court’s intervention, consider the collaborative divorce process, where you hire your own lawyers, but resolve your issues through negotiations and problem solving and agree to settle out of court.