Divorce Mediation Myths

Debunking divorce mediation myths: Facts about the mediation process.

Myth: Mediation allows one spouse to dominate the other.

Fact: Most states require mediators to attend extensive training before taking on any cases. Mediators learn how to balance the power between the spouses, especially if there’s a history of dominance in the marriage. A qualified mediator pays close attention to the spouses and will use techniques to address and remedy any imbalances. In most situations, if the mediator calls attention to dominant behavior and it continues, the mediator will end the session.

It’s important to understand that even the best mediators can be unaware of dominant behavior if it goes on outside the meeting. For example, if your spouse is sending you threatening messages about your case or settlement, the mediator can’t put a stop to it unless you speak up.

Myth: Women are at a disadvantage in mediation.

Fact: Mediation is meant to put both spouses on equal footing when it comes to negotiating a divorce. Neither spouse will enter mediation with an advantage, especially when the mediator is a neutral third-party.

Experienced mediators will give both spouses the opportunity to voice an opinion on essential divorce matters, like child custody, child support, property division, and spousal support. The goal is for spouses to work together, in good faith, to reach an agreement. Women sometimes feel bullied into a divorce arrangement, but if you’re not comfortable with the negotiations, you can end mediation and ask a judge for assistance.

Myth: Mediation is more of a hassle than hiring a lawyer to handle the divorce.

Fact: Divorce is a time-consuming and expensive process, even without attorneys. Once you start incurring legal fees, you can expect your divorce costs to rise significantly. Mediation may alleviate the time and financial constraints of a standard divorce by cutting out the need for hearings and a trial.

Regardless of the route you take, divorce requires both spouses to gather relevant financial, medical, and other information so the couple can create a fair and informed divorce agreement. After you submit your documents, couples can attend a few mediation sessions, or ask the court to decide for them, which will add a significant amount of time and expense onto your divorce.

Myth: Mediation is for wimps.

Fact: On the contrary, spouses who agree to mediation are often surprised at how much control they keep over their divorce. Before you ask a court to split your property and debt, or who should be the custodial parent to your children, consider that you may not like the judge's decision. Mediation allows you to continue to make decisions based on what’s right for your family. When couples maintain control, they often feel empowered and self-assured that the judgment of divorce is right for their family.

Myth: Mediation makes the divorce take longer.

Fact: It’s no surprise that from start to finish, divorce takes a long time. In most cases, mediation will help streamline the process and reduce the time it takes to finalize your case. Many states have a mandatory waiting period before the judge can grant a divorce. During the waiting period, many couples find it beneficial (and some courts require it) to participate in mediation to begin discussing how to settle the case.

If you’re not willing to mediate or negotiate, you’re going to wait for the entire mandatory period before the judge even looks at your situation. For example, in Michigan, couples with children must wait a minimum of six months before the judge can act on the divorce. Couples who mediate their divorce during that time can reach an agreement, and the judge can approve the dissolution in as little as six months. But, if spouses can’t agree, or request a divorce trial, couples may be presenting evidence and asking witnesses to testify on their behalf for years to come.

Myth: There’s no place for lawyers in mediation.

Fact: Contrary to popular belief, attorneys generally support alternative dispute resolution, like mediation. Attorneys understand that most couples don’t have the money to cover the costs of a contested divorce and encourage clients to attend mediation with an open mind and in good faith.

An lawyer's primary function is to inform clients of their rights and responsibilities during the divorce process, to coach them through the negotiation process, assist them with creating a settlement agreement that meets their needs, and prepare the necessary paperwork to obtain court approval of the final agreement. While most states prohibit attorneys from charging a flat-fee for divorce, many will charge a reasonable hourly rate for services, and if the attorney requires a retainer up-front (advanced payment), the client will receive a refund of any money unused at the end of the case. Your attorney can act as a consulting attorney through mediation, informing you of your rights, helping you prepare to negotiate, and reviewing any proposed agreement before you sign it.

Myth: All lawyers understand and support mediation.

Fact: While most attorneys encourage clients to explore options other than a trial, divorce mediation is still a relatively new way of approaching divorce. If an attorney is used to adversarial (contested) divorce proceedings, it’s unlikely that this particular attorney will automatically consider mediation as an option for your divorce.

Some attorneys disapprove of alternative dispute resolution altogether, arguing that divorcing spouses shouldn’t negotiate the terms of their own divorce without legal training. Attitudes are slowly shifting, but if you’d like an attorney who is well-versed in mediation and other non-adversarial tactics, it’s important to raise questions about mediation during your initial consultation.

Myth: In mediation, the mediator decides what’s fair.

Fact: Unlike a judge or arbitrator, mediators hold no power when it comes to making a final decision on your case. Mediators are trained to understand how to facilitate the conversation and offer suggestions when the couple reaches a roadblock, but if the couple can’t agree, the mediator must end the session without an agreement.

Myth: Mediation is always the best option for every divorcing couple.

Fact: While mediation is appropriate for many divorcing couples, that’s not the case for every divorce. If spouses are willing and able to speak up for what’s important to them and can behave civilly during the mediation session, the process may work for them. However, there are some cases where the court avoids mediation. For example, if there is a history of domestic violence, the couple may need to hire attorneys to speak for them instead of fighting on their own.

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