Amanda B. Shaked, Esq.
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Divorce Mediation, a process in which divorcing spouses sit down with a neutral third party to resolve the outstanding issues in their marriage, can be a great option for many couples. Even if you and/or your spouse don't necessarily feel ready to mediate, when you consider the financial and emotional costs of a contested divorce, you might want to give mediation a try. Contested divorces can become incredibly expensive and emotionally draining. In considering divorce mediation, you should contemplate the current state of your relationship with your spouse. You are most likely to have a successful mediation experience if all or most of the following statements are true.

The Decision to Divorce Is Mutual

Sometimes, the decision to divorce is mutual. Both spouses come to the conclusion, more or less at the same time, that the marriage is over and that the relationship (in it’s current state) is no longer working. For other couples, the decision may be more one-sided. One spouse decides that a divorce is necessary, while the other spouse is unprepared for, and perhaps opposed to, the idea of getting divorced.

When the decision to divorce is mutual, spouses usually find it easier to begin working together on a settlement in a collaborative mediation setting than they would if one spouse initiates the divorce. Where one spouse makes the decision, it is natural for the other to resist cooperating with any requests to move along in the process, including a request to mediate. This may with the passage of time, so, as in all other things in life, time is of the essence in determining your readiness. If the divorce was more one person's decision than the other's, more time may be required before you start the mediation process.

You Have No Desire to Reconcile

If you and your spouse have accepted (however reluctantly) the reality of your separation's being permanent, and if neither one of you has an overwhelming desire to reconcile, then the odds are that each of you has reached an emotional point in the divorce process when mediation can be a productive tool in divorce resolution. This doesn't mean you must rule out the possibility of reconciliation. But you do have to be ready to focus on what happens if you and your spouse don't get back together.

You Want to Maintain an Amicable Relationship With Your Spouse

Spouses who want to remain on good terms with each other, either because they have children together or because of their own values, can use this motivation to get through the rough spots in negotiating and compromising during mediation. It is not essential to a good mediation, but it certainly helps. Do you have a high level of animosity toward your spouse that could undermine mediation? If so, you might find it helpful to work with a counselor on ways to keep this animosity in check while you proceed with mediation. Another option is to find a mediator who will conduct some or all of the mediation in a separate forum so that you don't have to deal directly with your spouse.

You Don't Blame Your Spouse for Your Separation

It's natural at times to blame your spouse for things that went wrong in your marriage or for the decision to divorce. But, if you feel that your spouse is entirely, or almost entirely, to blame, you might find it hard to enter into any agreement in mediation that your spouse considers acceptable.

Also, if you want your spouse to acknowledge and pay for his or her wrongdoing in some way, such as giving you the bulk of the marital property, mediation may not succeed, because your spouse may not be prepared to accept any blame, let alone pay for it in some tangible way. If your state's laws allow you to prove fault as a ground for the divorce, and you have the emotional and financial resources for it, maybe a contested divorce is the right approach for you.

You Fully Understand Your Financial Reality

Financial issues are a significant part of any divorce. In order to negotiate an effective financial settlement, you need to understand the financial reality with which you are working. The mediation process can help you get a better handle on your financial situation, but the more you know about your finances, and the more comfortable you are talking about same, the more confident you will be going into mediation and the fewer surprises you'll encounter along the way. If you know very little about your joint finances and your spouse is very knowledgeable, you may feel at a disadvantage going into the mediation.

Your Spouse Has Been Forthcoming With You Throughout the Relationship

If your spouse has betrayed or been dishonest with you in the relationship, you may need to take a close look at whether or not you can trust your spouse to be truthful and sincere during the mediation. If your spouse has lied to you about an affair, you may understandably be afraid to believe anything your spouse tells you, especially if you only recently discovered the deceit. But this doesn't necessarily mean that your spouse will lie about other crucial aspects of the relationship, such as finances and property.

If your spouse has lied to you about property or finances, you have a different problem. It might not be wise for you to rely on the voluntary exchange of information. You may want to consult a lawyer and/or accountant about other ways to verify important facts independently. You may even need to ask the lawyer to conduct legal discovery of the facts and records to give you a complete financial picture before starting mediation and attempting to negotiate a settlement. It may also be important to work closely with a lawyer or financial adviser during mediation to develop settlement options that don't rely on your spouse to provide information in the future.

You Have the Ability to Effectively Resolve a Conflict with Your Spouse

If this statement is true, you have the ability to take a stand during a conflict with your spouse without losing control of your own behavior. You don't need to have a perfect relationship with your spouse to have a good experience in mediation. After all, helping you communicate constructively is one of the mediator's main jobs. But, if your emotional reactions to your spouse are so strong that even attempting this seems impossible, then mediation may not be the right thing for you just now.

Your Spouse Doesn’t Easily Intimidate You

In mediation, you will be expected to speak for yourself and negotiate your own agreement. If you find yourself easily intimidated in your spouse's presence, speaking up may be hard for you. Practicing in mediation, with the coaching and support of the mediator, can help you get better at this, but you'll need a minimum level of self-confidence just to start the process.

Domestic Violence Is Not an Issue in Your Relationship

If physical violence is part of the relationship with your spouse, it may not be possible to keep the playing field level and tempers cool enough to negotiate an agreement directly in mediation.

Alcohol or Drug Abuse Is Not an Issue in Your Relationship

An alcohol or drug problem can impair someone's ability to think clearly and make sensible decisions. It can also lead to out-of-control behavior. This can undermine the success of any negotiation, whether it is conducted between lawyers or during mediation.

You Respect Your Spouse As A Co-Parent

Mediation is usually considered one of the best ways for divorcing parents to negotiate agreements about their children. You can talk, parent to parent, about what is best for your children, rather than leaving the decisions up to strangers. Differences in parenting styles or the amount of time each of you spends with your children can be addressed in mediation.

However, if you and your spouse strongly disagree about the ability of one of you to take care of your children, you may not be able to negotiate an acceptable custody arrangement until that issue is fully evaluated. This is especially true if the problem you are concerned about is so serious as to constitute child abuse. If your disagreement about parenting issues is so pervasive that you cannot agree about how to proceed, you may need to get things started through the court. Even so, you might be able to use mediation to negotiate an agreement after the evaluation phase is completed. In fact, in a contested divorce matter, the Judge may refer you to mediation in a court-sponsored program prior to hearing your case.