About 76% of family mediations reach settlement*
Does the thought of months in public court horrify you? Divorce can be a traumatic experience and very expensive – on average, $16,000 per divorce! If you’re here, you’re likely exploring alternatives and wondering, “does divorce mediation work?”
In short – yes, it can. There are many variables that help to determine whether you and your spouse reach agreement on all separation issues, but overall mediation has been proven to be successful, and more efficient and cost-effective than court.
Mediation is the process of having an impartial third party facilitate a discussion to help you and your spouse reach a separation agreement. It is a different process than going through court and still requires involvement from your lawyers. I’ll outline those differences here to help you answer the question, “is divorce mediation right for me?” and explain more about how it all works.
Why has mediation become so popular?
Divorce can be a painful and emotionally charged process. How you deal with it can largely determine whether you should seek litigation (going to court) or an alternative form of dispute resolution. Mediation is encouraged by the Family Law Act because it is more cost-effective, more flexible and creative, and involves more direct decision-making than court.
Mediation is a more affordable alternative to litigation, though it still involves your lawyers. Mediators can’t act in the best interest of anyone – they’re neutral on your issues and are there to facilitate and guide the process of you creating agreements that work for your unique situation. Unlike in court, where a judge decides the ultimate outcome, you and your spouse have the opportunity to self-determine your agreement, and explore creative solutions.
When mediation doesn’t work, then going to court is another option amongst others. Court can be a long and arduous process, but suitable if assisted communication isn’t enough to reach a settlement.
It’s important that you find the right solution for your situation, and to consult your lawyer for legal advice.
How mediation works
Divorce mediators are not couples counsellors. They are trained and professionally qualified to help you through the process of solving separation issues more efficiently than the court system. They can give you information and offer insights, but they do not offer legal advice. If you and your spouse are open to the process, mediation can help both of you come to an understanding about your children’s care, your relationship, and your finances, avoiding the often-combative nature of a trial. Learn more about what to look for in a mediator.
On top of that, mediation typically costs a fraction of litigation and can help you reach a settlement agreement faster.
In your first contact with a mediator, and during pre-mediation meetings, the mediator will assess whether mediation is appropriate for you.
Some of the factors a divorce mediator will assess about your situation include:
● Safety
● Emotional readiness
● Capacity
● Willingness of both parties to participate in good faith
Safety
It is important that you feel supported and safe during divorce mediation. If there is a history of violence, abuse or substance use in your relationship and safety is a concern, there’s a strong possibility that mediation may not be appropriate for your situation.
Typically, mediation meetings occur between you and your former partner and the mediator. These are private meetings held in-person, online, or by phone. If you would not feel comfortable or safe in this setting, and the process can’t be adapted to address safety concerns, you’ll need to consider other dispute resolution processes.
Mediation is a great alternative if you and your spouse are willing to talk respectfully. Often, couples can’t come to an agreement on their own, but need to remain amiable for the sake of their children or themselves. Mediation can help with this.
Emotional Readiness
The divorce grieving process can take a while, which is why mediators assess how emotionally ready you and your spouse are. It may take six to twelve months, or even longer for you to be ready.
When you are emotionally ready, meaning you are able to let go of your past point of view, speak honestly, and act rationally, the mediation process tends to proceed faster. If you are not at this point, then counselling may be needed first. Sometimes couples deal only with immediate issues to start and then take a break before returning for final settlement discussions.
Capacity
Since a mediator is neutral and does not offer opinions to benefit one party or the other, they will never tell you what to do to solve your issues. That’s why you and your spouse must be capable of understanding the process, generating and evaluating options and advocating for yourselves. If someone does not have the mental capacity to enter into a legally binding agreement (for example has suffered a brain injury or has a mental disability), mediation may not be a fit.
Willingness of both parties to participate in good faith
You can’t force someone into mediation, but you can force someone to go to court. If your spouse is unwilling to meet with you or a mediator to discuss your issues, then consulting a lawyer can help you figure out what to do next.
If you’re both willing to meet with a mediator, the mediator will meet with each of you separately during confidential pre-mediations. They will assess your motivation to mediate. If you have concerns that your spouse is using the mediation process in bad faith (for example, exhausting your resources so that you can no longer afford representation in trial at a later date), share your concerns with the mediator. Both you and your spouse must be genuinely focused on solving the issues for mediation to work.
How well does divorce mediation work?
Most of us have either experienced divorce or had friends whose parents divorced. From these experiences, we know that divorce is rarely an easy, straightforward process. Children are too often caught in the middle, and parents compete with one another for parenting time and their fair share of the family net worth. The experience can be very stressful for the whole family and can impact how you function throughout life.
I chose to work in divorce mediation, because I know that when done well, it’s an effective and efficient way to avoid the turmoil of going to court.
Mediation is not guaranteed to work for you, but both you and your spouse’s willingness to go through the process and discuss things rationally are ingredients of success.
Are you willing to mediate? Contact me today to discover if mediation is right for you.
* Mediate BC’s 2015 Survey of Roster Mediators
Important: This is intended as information only. It does not replace legal advice. In working with a mediator, you will be encouraged to seek independent legal advice.
