Pros and Cons of Divorce Mediation

How to decide whether mediation—rather than doing it yourself or going to court—is the best way to handle your divorce.

By , Retired Judge
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When you've decided to end your marriage, one of the first things you have to decide is which process you'll use to get divorced. You can hire lawyers and battle it out in court, use a do-it-yourself service, or try divorce mediation.

What Is Divorce Mediation?

During divorce mediation, spouses meet with a trained, neutral mediator in an informal setting. Sessions often happen in the mediator's office, but there are plenty of options for participating in online (or "virtual") mediation. Regardless of the format, the mediator helps the spouses settle their issues—such as child support and how to divide property, among others—and record the settlement in an agreement.

Once a couple has prepared a settlement agreement, they can file an "uncontested" divorce with the court. The court often fast-tracks uncontested cases because everything has been worked out in advance; judges are often able to finalize the divorce in a matter of a couple of months.

The Pros of Divorce Mediation

If you're not able to do a DIY divorce because you and your spouse have unresolved issues or you just need some help with the paperwork, trying mediation before putting your case in the hands of lawyers has many advantages.

1. Help Navigating the Issues

When you and your spouse are in agreement, you have options for divorcing quickly and cheaply—including using an online divorce service. But if you and your spouse have issues you can't agree on, most online divorce services won't work for your case.

Also, the more complex your situation is—for example, if you have a lot of assets or a child with special needs—the more likely it is that you and your spouse will need some guidance resolving the issues. A knowledgeable mediator can alert you to the details you need to work out, lay out possible solutions that have worked for other couples, and help you complete the paperwork.

2. More Control Over the Outcome

To a large degree, mediation places your future in your own hands, rather than leaving it up to a judge to decide what happens to you, your children, and your assets. No one is as familiar with your situation as you and your spouse. Mediation can help you determine the outcome of your marital split on your own terms.

Judges typically have big caseloads, with only a limited amount of time to consider each situation that comes before them. With mediation, you have the opportunity to really dive into the issues and craft creative solutions. For example, through mediation, a couple might come up with a specifically tailored situation where the pair keeps the family house until the kids are out of school, or the kids live in the house and the parents move in and out.

3. Faster Resolution of Your Divorce

Another benefit of mediation relates to time. When you hire lawyers and head to court, you might find yourself stuck in a process that moves with the speed of a glacier. Your case is one of thousands to be handled by one of a limited number of family court judges. Mediation, on the other hand, can proceed at whatever pace you, your spouse, and the mediator agree on.

4. Significant Cost Savings

If you file for divorce before resolving issues like custody, child support, distribution of marital property, and alimony (spousal support), it's more likely that you're going to need a lawyer to help you get the outcome you want. With so many issues needing to be resolved, it doesn't take long for attorneys' fees to add up. And the more arguing there is, the faster those bills accumulate.

In most mediations, the spouses split the mediator's fee. So whether the mediator is an attorney or another professional trained in mediation (such as an accountant or psychologist), the odds are you'll be paying far less than if you had gone to court. And if the idea of representing yourself in a mediation seems daunting, you do have the option of hiring a lawyer to guide you through the process.

Note that there are situations where divorcing spouses might need other professionals to help with mediation. For instance, you might want an appraiser to assess the value of property or a psychologist or social worker to help work out child custody and visitation issues. But you'd likely need assistance from those same professionals if you were to bypass mediation and go directly to court. And, in all probability, you'd be paying even more for their services—you would have to pay not only to consult with them but also for them to testify in court or prepare a written report.

5. Control Over Your Schedule

When you go the court route, you have no control over scheduling—the court will tell you when you must appear, with little regard for your personal schedule and prior commitments. And it's not unusual to go to court for a hearing or a conference and wind up waiting hours before a judge is ready for you. With mediation, you and your spouse set the dates and times of meetings with the mediator. Some mediators even offer evening sessions, a major plus for spouses holding daytime jobs.

6. A Good Start to Your Post-Divorce Relationship

When the mediation ends, you and your spouse will likely be on better terms than if you'd spent a year or so battling each other in the courthouse. Court skirmishes tend to foster lingering hostility and resentment that becomes nearly impossible to overcome even once the divorce is finalized. The negative effects of that are obvious, both for you and your children.

Mediation can also set the tone for a better relationship and make for smoother co-parenting down the road. In fact, a long-term study revealed that mediation resulted in parents who don't live with their children seeing the children more often than those who took their divorce to court.

The Cons of Divorce Mediation

As productive as divorce mediation can be, it might not work for everyone. Consider these potential cons.

1. You Won't Have Someone Negotiating for You

For people who are comfortable discussing and negotiating legal matters without consulting an attorney, mediation is a great option. Although qualified divorce mediators know the relevant law and can draft a settlement recording what you and your spouse agree on, they cannot give you legal advice. (Many qualified divorce mediators aren't lawyers—they can be all kinds of professionals, such as therapists, social workers, and psychologists.)

Some mediators allow attorneys to attend mediation. Others, though, discourage having a lawyer present—especially when only one spouse will be represented—because they're concerned the presence of a lawyer will create an imbalance in the negotiations. And when both spouses bring attorneys, the atmosphere can seem combative.

If you want to proceed with mediation but also want to get legal advice, consider consulting with an attorney outside of the mediation sessions. You could do this after each session, or at the end of the process.

2. Mediation Is More Expensive Than Do-It-Yourself Divorce

If you're looking to keep your expenses to a minimum, keep in mind the cost of mediation compared to a DIY divorce. But in a DIY divorce, you'll have to navigate the divorce process without any help, meaning you'll have to familiarize yourself with court rules and procedures.

And unless you're in total agreement with your spouse and your divorce involves nothing more than ending the marriage, you could end up unhappy with the DIY settlement. If you compromise just for the sake of compromise, you could agree to something you end up regretting. For example, you could make a decision about the division of a sizable pension or real estate—or settle on an alimony payment—and then learn you misjudged the legal or financial consequences.

3. Mediation Isn't Suitable for Couples With an Imbalance of Power

A successful mediation depends on a level playing field. Mediation can fail if either spouse has the upper hand in one form or another. For example, a spouse who bullies and is used to "winning" might never agree to settle. Or a spouse who has experienced domestic violence might be too afraid to speak openly in a mediation session. (Ongoing domestic violence and other dangerous situations basically rule out mediation and mean that the potential or actual victim needs help from a professional.)

Likewise, mediation is less likely to be successful when a spouse has a history of being deceitful or untrustworthy. This is especially true when a spouse is suspected of hiding assets or wasting funds. You can't reach a meaningful settlement unless both spouses are truthful about all issues involved, including everything they own.

Also, if one spouse is legally claiming that the divorce is the other spouse's fault or has already hired a lawyer, then the other spouse should normally have an attorney.

The Bottom Line on Divorce Mediation

If, after weighing the pros and cons, you think mediation is a good fit for your divorce, you can propose it to your spouse. In order to proceed, you'll both need to agree to mediate and on the mediator.

On the flip side, unless the court orders it, know that you are never required to mediate. And, if you're unsure, it might be worth the time and money to meet with a family law attorney to discuss the specifics of your situation, whether mediation is a good fit for your divorce, and whether you might benefit from having a lawyer represent you in mediation.

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