Can Mediation be used in Divorce?
If you are facing divorce, you may be wondering if you can use the mediation process successfully. While some divorcing couples remain capable of communicating calmly and rationally with each other, many others do not. Regardless of which category you and your spouse fall into, mediation can help. For those couples who are already skilled in productive communication, working with a mediator can streamline the resolution process. For those who find the idea of sitting down and negotiating face-to-face with a soon-to-be ex-spouse daunting, mediation can be even more valuable.
For most divorcing couples, mediation offers the best method of resolving disputes. Litigation forces spouses to stake out opposite positions, providing fertile ground for escalation of hostility and conflict. By contrast, mediation presents the opportunity to approach issues in a collaborative manner, expanding available options.
Considering Divorce Mediation
While mediation remains the best option for most divorcing couples, it is not always the ideal choice. Successful divorce mediation generally requires that each spouse have the ability to see how various solutions might affect not only themselves, but also the other spouse. If you feel that one or both of you are currently lacking in that ability, do not immediately dismiss mediation as an option; instead, step back and consider whether or not there is potential for improvement.
Many spouses first approach divorce from sharply alienated positions and find it difficult to see things from the other spouse's perspective. Divorce is a highly emotional life event. It is natural when confronting any such event to focus first on one's own risk of serious loss. One major benefit of mediation is that it tends to foster empathy and understanding. Rather than become more antagonized and alienated, divorcing couples can begin to move toward mutually beneficial solutions. As each of you experiences greater empathy for the other's positions, more and more possibilities become apparent. This can be a profoundly healing process. While compromise is necessary in any divorce negotiation, mediation can help ensure an end result that meets the most fundamental needs and interests of each spouse.
There are some situations that make choosing mediation especially difficult. If there are extreme power differentials in your relationship, mediation can be more challenging, but it is not always out of the question. The classic example of an extreme power differential is domestic violence. If your spouse has been physically aggressive, it may not be possible for you to feel safe in any negotiation process. If one of you has an active restraining order against the other, you will not be able to engage in face-to-face meetings. If your spouse is verbally aggressive or highly critical, but not physically aggressive, negotiations can be more difficult, but you may not want to rule out mediation entirely.
Power imbalances can also appear in more subtle contexts; for example, one partner may earn all of the money, or the children may be much more closely bonded with one parent. Mediation is generally still the best alternative in these situations, but acknowledging the extent to which one or more kinds of power differential exist can be an important element of the process.
Couples with deeply entrenched patterns of negative communication who tend to approach conflict with mutual criticism or shouting matches may also find mediation challenging. This is an extremely common issue with divorcing couples, many of whom have struggled with conflict for years. If you and your spouse feel trapped in a cycle of negative and unproductive communication, a neutral mediator can help you break free of this and prevent you from investing precious time and emotion in further unproductive arguing. You will need to choose a mediator who will not be thrown off by your style and who has the ability to help you get back on track with more respectful communication. The mediator will make sure that each of you gets a chance to voice all of your concerns and will step in as a referee if things begin to go off track.
If you are facing any of these more challenging circumstances, your best option will be to review all of your available choices with an attorney who has experience with your particular type of situation. In many cases, mediation will still possible. Choosing a mediator with appropriate experience and training will be especially important. You may also wish to consider therapy as an adjunct to the divorce process. A therapist can serve as a divorce coach, helping you to keep damaging emotional reactions in check throughout the process.
There is rarely a significant downside to trying mediation. If you begin the process and then find yourselves at an impasse, with increasing attorney involvement, you may be facing an issue that requires court intervention. This does not mean that you cannot mediate the other remaining issues in your case. Successfully resolving even a few issues in mediation can save you time and expense in court proceedings.
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