When Divorce Mediation Is Not the Best Option for Your Family

Mediation is often touted as the best way to resolve the inevitable issues that come up in most divorces in Maine—but is that always true?

Divorce issues could involve child custody, marital property division, spousal support, or another matter. Alternative dispute resolution methods like mediation, collaboration, and arbitration can often help divorcing couples save time and expenses, but they are not necessarily suitable for all family situations.

So, let’s take a look at instances when divorce mediation may not be the best option for your family.

For many divorcing couples in Maine, mediation offers a way to resolve disputed matters without ending up in courtroom battles, which can be expensive and draining.

Couples meet through structured sessions that provide a more relaxed setting than a court. A trained and independent mediator facilitates discussions, firstly helping the couple identify their main needs and expectations, and then exploring possible solutions as they attempt to reach mutually acceptable agreements.

However, the mediation process requires active collaboration and a willingness to find common ground. That is not always possible in divorces.

For divorcing couples, mediation can save time, money, and stress compared with litigation. It can also help couples reach creative and personalized solutions to issues, rather than having to stick rigidly to existing legal frameworks.

For couples with children, mediation is often seen as a mature way to resolve disputes while avoiding conflict. This can help to preserve the parental relationship that is key to effective joint parenting after the family separates.

Mediation also keeps the parents in control of the key decisions that affect themselves and their children, rather than asking a judge to decide. As opposed to litigation,  mediation matters are kept private rather than becoming part of the public record.

Divorce mediation may not be appropriate for you and your family in the following situations:

High-conflict divorces are contested divorces where parties engage in major disputes. These can arise due to perceived wrongdoing or blame in the marriage or later due to disagreements over the terms of divorce.

In such cases, it is often impossible for couples to sit down and discuss matters calmly and rationally, as is required for mediation to be effective.

If communication has broken down, there is little prospect of effective mediation. The mediation process relies on open communication and a willingness to collaborate to find common ground.

If spouses refuse to listen, cannot communicate properly, or are constantly arguing and hostile toward each other, not even a trained mediator will be able to facilitate an agreement.

If there is a history or threat of domestic violence or abuse, mediation is not advisable as it could endanger a spouse.

A threat of violence toward a spouse or children should be taken seriously. If an emergency protective order is required, seek the help of a family lawyer to request an order from the court. Your lawyer can also help you secure temporary custody of the children.

Transparency and open communication are required for the mediation process to be effective and for equitable outcomes for both parties to be sought.

If one spouse is withholding information, it may limit the options or result in unfair decisions. Unlike litigation, which has a formal discovery process that must be followed by both parties, mediation relies on information being voluntarily and freely shared.

With alternative dispute resolution processes like mediation, there are no court deadlines or procedures to be followed. While this can be a benefit, it means that both parties must be committed to the process or it won’t work.

Often, if one spouse is reluctant to engage in mediation, sessions will be canceled or the spouse will be unprepared for the mediation process. This sometimes happens because one spouse is reluctant to divorce.

Sometimes, in relationships, one spouse controls or manipulates the other, resulting in a power imbalance. Unless this can be overcome during mediation, it can be counter-productive for the process, which requires a “level playing field” for both spouses for an equitable settlement.

In this situation, if the spouse’s respective lawyers are present to advocate their client’s views and rights, the mediation sessions may still be productive, but the mediator may also need to play a more active role in discussions.

Some of the most divisive matters in divorces involve finances.When the financial situation is especially complex, considerable preparation may be required before mediation can be beneficial.

If there are significant assets, with complex calculations required for an equitable division—for instance, a business is involved or investment/pension calculations are complicated because of the length of the marriage—standard divorce mediation may not be appropriate. The intervention of a financial expert may be required to help unravel what is fair when it comes to property division.

In some mediation arrangements, spouses’ lawyers are not present. The mediator and the two spouses can settle matters.

If the dispute is more complex and legal advice may be necessary during the mediation session, or both spouses feel the need for their lawyers to be present for guidance and support, divorce lawyers may attend.

It is important to note that the mediator can explain the legal consequences of decisions made but cannot provide legal advice to either spouse. Attorneys can advise their clients, protect their legal rights, and identify potential red flags before an agreement is signed.

Mediation sessions can be effective and lead to better outcomes for couples when the following circumstances apply:

• Transparent communication is possible.
• Spouses express a desire to cooperate and collaborate on a fair outcome.
• Spouses want to make informed decisions and negotiate solutions to avoid litigation.
• There is low conflict and mutual respect between the spouses.
• Spouses can commit to seeking agreements that are sustainable for the long term.

If you need legal assistance with divorce mediation in Maine, speak to an experienced family law attorney at The Maine Divorce Group during an initial consultation.