When parties divorce, they can proceed in three ways. First, if they agree on everything (perhaps no children and little property), they can have an uncontested divorce. Second, if they have differences on key issues like custody or support, they can resolve the differences through litigation or mediation. Litigation is the traditional method where each party has an attorney and they use the adversarial process to work out an agreement, either by settlement or by trial. Mediation involves only one lawyer, a mediator, who will help the parties reach an agreement on their own without other attorneys, and will complete the paperwork that the parties will file jointly to dissolve their marriage.
Mediation certainly has its advantages. First, it takes much less time than the usual court process. Traditional litigation can take between six months and eighteen months, depending upon the complexity of the case and the degree of conflict. Mediation usually takes three months, depending upon the availability of the mediator. Second, mediation costs less than traditional litigation, as the parties need only hire one attorney. Third, mediation tends to keep the conflict low. Because mediation is premised on the ability of the parties to communicate and collaborate on a mutually acceptable outcome, mediation tends to proceed with less hostility. Fourth, mediation can keep the children free from the process, not only from direct participation but also from seeing their parents openly fight or having records to read in the future detailing all of their dirty laundry.
But mediation is not for everyone. Mediation only works when the parties truly have an ability to work together, and many couples going through divorce can barely stand to be in the same room with each other, let alone work rationally through property division or a custody schedule. Also, mediation works best when the issues are manageable. Parties with significant assets would not be good candidates for mediation because they would require outside counsel – not just an attorney but a financial planner. While it is true these parties could work through these issues together, the risk of not having sufficient information may be too high. And where parties do not see eye to eye on key custody matters or have children who are struggling with the divorce, having outside help might be necessary.
Mediation is often highlighted for creative problem solving, but parties can do that in traditional litigation as well. The ability to think creatively comes from the parties and counsel, not the mediation process itself.
If you think mediation might be a viable option for you, before you and your spouse both get attorneys, meet with a mediator and see if that scenario fits your personal circumstances. If not, interview one more. If you still find yourself skeptical, it might be best to pursue the traditional litigation route.