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When to use mediation in divorce, and when to avoid it

Mediation is increasingly common in divorce. Some Arizona courts frequently refer divorcing couples to mediation, and many couples choose mediation on their own. Indeed, some studies have found that as many as 93% of divorces now try some form of alternative dispute resolution, with mediation being by far the most common method.

That said, mediation is suitable for some divorces more than others, and there are some situations in which many authorities would not recommend mediation.

Who is the mediator?

Divorce mediation is a form of negotiation facilitated by a mediator. The mediator — typically a legal professional — is trained to remain neutral as they guide the parties toward resolving their issues and drafting a settlement agreement.

The mediator does not render a decision, like a judge or an arbitrator. Rather, their purpose is to help the spouses reach an agreement. When they agree on their issues, the spouses and their respective attorneys formalize the agreement in a binding contract.

What issues can be resolved through mediation?

Mediation can be a good tool for property division in divorce. Negotiating the split of community property can be a long, exacting experience, and the adversarial nature of traditional litigation can often make the process harder: Each spouse is trying to get the most they can out of the settlement and has little motivation to compromise. Mediation can help cut through the competitive nature of these negotiations and help the parties reach a speedier agreement.

Mediation may be especially well-suited for resolving child custody matters. While judges can make decisions about child custody issues, parents know their children best, and most would rather make those decisions themselves. As with property division, mediation can reduce the competitiveness of child custody negotiations, and this has some added advantages. By reducing the animosity between the parents, it helps create a better working relationship as the parents continue to coordinate parenting duties in the future, and it helps save children from the damaging effects of having parents who are at odds with each other.

Issues and situations where mediation may not work

There are some issues in which mediation is less well-suited. Generally, child support obligations and amounts are controlled by formulas based on the parents’ financial resources and the child’s needs, and so there is not a lot of room to negotiate changes. Also, mediation may not be a good fit for situations involving highly complex property division issues.

Most seriously, mediation is not recommended for situations in which there has been a history of domestic violence, abuse or manipulation. If one spouse is in fear of the other, they will be at a great disadvantage in the kinds of negotiations that mediation entails.

That said, the statistics suggest that mediation is a good choice for a huge number of people going through divorce. Those who would like to learn more about it can speak to professionals who have experience with divorce mediation.