In the last 20 years, mediation has become the panacea for many legal disputes. From employment, to human rights, to child protection, to personal injury, and for divorce, clients, lawyers and judges have all been seeking to use mediation to resolve all types of legal disputes. As a result of the huge demand for mediation, academics, social scientists and legal professionals have had to grapple with the criteria to ascertain who may benefit from mediation and who may not. But the players in divorce mediation are a special group. The circumstances for successful divorce mediation must be synchronized to render this process useful.
Most of the data that has disqualified candidates from divorce mediation stem from failed mediations, where the mediator was able to assess and measure why the dispute was not resolved in mediation. This data has been most useful in establishing the criteria for divorce mediation.
In this article, I will highlight the 5 most common causes for failed mediations and, therefore, the reason why divorce mediation is not for everybody.
REASON #1: At least one spouse is not yet emotionally or intellectually ready to discuss the legal issues and make compromises. In simple language, the wounds of divorce are too raw to negotiate a settlement.
REASON #2: One or both spouses are not familiar with how mediation works and what the reasonable expectations are from a mediation. That is, the spouses have not been coached on how to use mediation to reach a successful outcome.
REASON #3: There is a history of domestic violence that makes this process inappropriate. If the spouses are not in an equal bargaining position, mediation will not succeed.
REASON #4: One or both spouses refuse to make full, frank and honest financial disclosure that would permit a resolution of support and property division. In simple language, the spouses are not willing to be honest and fair.
REASON #5: The mediator is not qualified to help that couple. The key ingredient in a mediation is the mediator and that professional’s qualifications, skill and experience, or lack thereof. Divorce mediation requires a specific set of skills that are very different from other areas of law and mediation.
It is important to ascertain who is the right fit for mediation, who is the right match as mediator and when is the right time to engage in that process. That is, the right timing, with the right professional, in the right process is most critical. If any one of those three factors is not properly accounted for, then the outcome will likely be negative.
One of the cardinal rules in mediation is “do no harm”. But by choosing the wrong professional, the wrong process or the wrong time, spouses can endure unnecessary negative consequences from divorce mediation.
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