Mediation Can Help in Divorce

    Their names suggest that mediation will be a painless alternative to acrimonious, bitter and costly divorce. But is hiring a mediator a sensible alternative to resolving a divorce with an attorney in court? 

Divorce mediation offers an alternative to litigated divorce, explained Katherine Stoner, an attorney based in Pacific Grove, Calif., and author of "Divorce Without Court: A Guide to Mediation and Collaborative Divorce." “With divorce mediation you get nuetral help, which is less likely to be adversarial,” she said.  

Indeed for many avoiding the argumentative aspects of divorce, where the attorneys battle it out, is one of the main appeals of mediation. With mediation, both spouses sign an agreement that they will reach a settlement that takes the other person’s viewpoint into consideration. With litigated divorce, the couple goes to court, and ultimately the judge decides.  

The American Bar Association (ABA) has no official position on divorce mediation, but Gregg Herman, the chair of the Family Law committee said that the ABA considers mediation a “conducive way to resolve family disputes and reach settlement, especially in cases involving children. Mediators are perfectly fine, especially if you’re hiring someone trained in mediation with a mental health background.”  

However, Herman added that mediators will not “advise people of what’s in their best interests.” He advises that, even with mediation, people should consult with an attorney to be aware of their rights.


WHEN MEDIATION WORKS

Not everyone is right for divorce mediation. Herman noted that when issues require legal knowledge in property division, business valuation, complex custody issues and issues of specialized knowledge, people should use lawyers or choose attorneys who are mediators. Stoner noted that people who are “not in control of themselves due to psychological issues, drug, alcohol or drug abuse or domestic violence shouldn’t be in mediation.” 

People whose judgment are impaired or are so vitriolic that they can’t sit in the same room as their spouse, like the characters in the film “War of the Roses,” aren’t likely mediation candidates. But mediation will work for most people who are motivated and civil, Stoner suggested.  

Moreover, Stoner noted if there’s a “power imbalance” in the relationship in which one person dominates the others, mediation could prove difficult. One way to overcome that discrepancy is to have the weaker person bring a support person to the sessions, Stoner suggested.