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Should I Consider Divorce Mediation?

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Here's what you need to know about mediation:

1. Many divorce cases are suitable for mediation (even when there is ongoing conflict; even when trust is damaged from an affair).

2. Mediation can involve just one mediator and be low-cost, or can involve outside experts (such as an accountant, a financial advisor, and consulting attorneys). You decide what you need and what you can afford.

3. Other than doing your divorce yourself, mediation is often the least expensive and fastest way to get divorced. It is the most “hands-on” and you control the process. Perhaps for this reason, couples rarely have “mediation regret” -- even in cases where no agreement was reached.

So your real task, when considering mediation, is to check for any compelling reason NOT to mediate -- the “red flags.” If any of these factors exist in your situation, mediation may not be right for you.

The following red flags are likely to result in failed mediation or an agreement you’ll regret:

• There's an imbalance of power. If you can’t advocate for yourself or stand up to your spouse in a negotiation, you know you will “cave” under pressure. (Note that one solution is to have a consulting attorney participate in the mediation, or set the ground rule that you won’t finalize/implement any mediation agreements until your consulting attorney has “signed off.”)

• One or both of you truly doesn’t care what happens to the other person -- or one or both of you is completely unable to understand the other’s needs and perspective.

• There is emotional or physical abuse in the relationship and you fear standing up to your spouse.

• Because of what you know about your spouse’s mental and emotional state, your strong gut instinct is that the mediation will become just another opportunity for drama and emotional attacks, and will therefore be an unproductive forum.

• You have good reason to believe your spouse is about to take or dispose of assets. (In this case, you need immediate legal help from an attorney representing you, not a mediator.)

• Your child is at risk of being taken out of the area or state by the other parent without your permission, or there is any other urgent matter involving your child that reeks of foul play. (Consult an attorney immediately to see whether you need formal restraining orders. You may be able to mediate once the restraints are in place, but again your first stop is your lawyer’s office, not a mediator.)

• You have a serious lack of trust in your spouse or you believe that your spouse lacks goodwill and will try to use mediation to get a legal advantage. For example: You think your spouse is hiding assets or lying and will continue to lie even if confronted in mediation. In this situation, you may need legal tools that cannot be offered in mediation, such as court orders, depositions, formal discovery/disclosure. Another example: You think your spouse will use mediation to pick and choose what he/she wants to resolve first to his/her advantage, but won’t reciprocate when it comes time to resolve the other matters. I’ve seen this happen most frequently when a couple comes in to resolve temporary custody as the first line of business. One parent pushes the other parent in mediation to agree to a certain custody plan “in the name of peace,” appealing to the other parent’s desire to avoid conflict. Then a few months later, after getting what he/she wanted, the parent drops out of mediation and won’t compromise on other matters. The agreeing parent ends up feeling “played” and can get stuck with an undesirable custody and parenting plan.

If one or more of these red flags apply to your case, consult with a reputable divorce mediator or family lawyer before deciding whether to mediate.

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