When a marriage breaks up, fairness is usually the last thing on either former partners’ mind. Spite can make a partner lash out and claw for whatever they can grab. That prevents couples from fairly dividing property and sensibly planning for their post marriage lives and drags out an excruciating divorce.
With mediation, some of the acrimony can be drained from the situation. Both spouses agree to hire a mediator to act as an impartial third party to create a plan for their lives post divorce. With input from both exes, they allocate assets, arrange kids’ living situations, and create detailed plans for schedules, agreements about how far apart former spouses can live from each other and more.
Mediation works for most splitting couples, but not all divorces are created equally. The process isn’t for everyone and, if couples aren’t careful, mediation could be a big waste of time and money. Here are reasons why you might want to skip the process and head straight for divorce.
An Ex Has an Axe to Grind
Mediation works when both parties accept the need for the divorce and have an amicable relationship. Unfortunately, that’s not true of all divorces. Brooklyn, NY attorney and mediator Rachel Green said that when an ex hopes to use mediation to inflict pain in retaliation for slights real or imagined, the process is sure to fail. “It doesn’t work if someone is out for revenge or to destroy the other person,” she said.
An Ex Asks For Too Much
Phoenix divorce attorney Craig Cherney of the Canterbury Law Group said people can sabotage the mediation process while making a charade of being cooperative. If someone’s terms are unreasonable and unlawful and they refuse to negotiate, then mediation isn’t worth it.
“If the initial demands made by your opponent are higher than what the law authorizes, in terms of dollars, it’s usually a symbol that they’re not there in good faith,” Cherney said. “They’re just doing it so they can tell the judge they tried it.”
The bad faith shakedown of mediation Cherney describes is rare. Green said in her 20 years of mediating experience, she’s rarely seen a person try to exploit the process like this.
“There’s probably been one or two cases where I felt like somebody was actually acting in bad faith and just trying to gather information about what their spouse was going to ask for but they had a lawyer on retainer on the side,” Green said. “It’s not that common.”
A Power Imbalance Prevents Couples From Fairly Negotiating
With mediation, one can retain an attorney to advise on the negotiation or go it alone. If one person intimidated by their spouse and can’t afford to have an attorney present, their ex could steamroll them during the negotiation. Mediation requires both former spouses to articulate what they need. Also, both have to be willing to listen to the other person even if when they’re not in agreement. “You have to be able to tolerate a certain amount of conflict between you as we work to try to resolve the conflict and come up with solutions that work for both people,” said Green.
An Ex is Hiding Money or Other Assets
Mediation requires honest disclosure of wealth and income to work. If an ex is sitting on a big pile of undeclared cash or overseas accounts they don’t want to admit to, it may be time for the other party to go to court to get their fair share. A mediator doesn’t have the authority of a judge to demand a full accounting of each partner’s finances. Luckily, being married to someone usually gives a sense of both their and their partner’s finances and honesty. “I find that usually couples know whether they can trust their spouse because they’ve spent a lot of years with the spouse,” Green said.
One Partner Wants to Publicly Shame The Other
Cherney said that four out of five of his clients opt for mediation not only for its relative ease and affordability, but to keep their finances as private as possible. “Mediators essentially become private judges for hire, that way a partner can keep very private divorce details out of court,” Cherney said. “If you’re a celebrity or high profile citizen in your community and you don’t want the local public knowing about your business, or balance sheets or your kids’ lives.”
It’s easy to imagine a split where opening an ex’s finance to public scrutiny seem attractive. Consider this total hypothetical situation: a plucky former model from Eastern Europe, let’s call her “Melania,” learns that her husband, a politician and celebrity who’s secretive about his finances, is a serial philanderer. A divorce proceeding would expose the hypothetical husband’s business dealings and the ensuing embarrassment might be worth more to someone than the money they’d get from mediation. “If you go to court all of that is public,” Green said, adding that “judges don’t take too well to tax fraud if that’s revealed during a hearing.”
Violent And Abusive Relationships
When one spouse has serious safety concerns about their ex, mediation can pose a potential safety risk. Mediation usually occurs in the private office of a mediator. While they can bring someone with them to be present and protect them, there’s overall a different level of security than a court, where armed guards are stationed nearby a judge has the legal authority to intervene.
“If the spouse is threatening violence, the court could lock them up,” Green said. “They can get an order of protection if they have evidence that there’s a real threat. In mediation, they’re usually sitting in the private office of the mediator. There’s no armed guards nearby. If there’s really worries about safety that could be case for alarm.
If the Price Tag is Too High
Mediators are generally cheaper than going in front of a family court judge but they’re by no means free. If one partner is broke, they may want to explore handling the divorce proceedings themselves. But be warned: not every state allows this and the process can be arcane and confusing in the states that do. “You can do it on your own,” Green said. “You’re not required to have an attorney in New York. There’s a set of uncontested divorce papers that are available online. You can fill them out. There’s an office in court called the Office for the Self-Represented and there are people there that will help you.”