How Divorce Mediation Can Help Contentious Spouses

December 20th, 2017

Divorce mediation is a growing trend among married couples of all ages; its rising popularity is due largely to the fact that, when compared to traditional litigation, it saves time and money while preserving the relationship between the parties.

Despite its growing numbers of advocates, misconceptions about divorce mediation still exist. Perhaps one of the most common misconceptions is that mediation is only effective for those rare couples who get along well and already agree on most major issues.

Not only is this misconception wrong, but it fails to understand the purpose of mediation and the ways it benefits even the most contentious spouses. One of the reasons that divorce mediation works so well for couples that don’t necessarily see eye-to-eye on various aspects of their divorce is also one of the biggest positive characteristics of the mediation process: mutually agreed-upon compromise. Further, the purpose of mediation—and the reason that parties decide to engage in the process—is dispute resolution. If the parties did not have a dispute about an issue, then there would be no reason for mediation to occur!

Even the most conflicted couples can benefit from the divorce mediation process and the services of an experienced divorce mediator: by understanding the differences between mediation and litigation, how a mediator can help spouses who are at odds, how to choose the right mediator, and simple tips to help your mediation be successful, you and your spouse will be in the best position possible to reach an amicable resolution.

Litigation can worsen tensions between hostile spouses

Although divorce litigation is viewed as the traditional route for couples who are parting ways, it can increase tensions between the parties and make already contentious spouses even less civil for several reasons.

First, litigation is adversarial in nature. As such, parties tend to think that there is a “winner” and a “loser”; for couples who are already assigning blame and fault to each other, the desire to “win” the divorce can sometimes prevent the parties from acting in their own self-interest.

Second, traditional divorce litigation is a lengthy process. Some divorces can take several years of bitter litigation before concluding: this delays the parties from finding closure and prolongs the stress and negative emotions that both parties and their families are already experiencing.

Third, litigating your divorce in court is expensive. While the divorce litigation drags on, the cost of the divorce continues to increase. Because money is usually already a point of contention in most divorces, having a lengthy and expensive litigation will only make the spouses even less likely to get along.

Further, because the outcome of litigation is decided by a judge, and because of the idea that one side “wins” and the other side “loses,” there is a good chance that one or both parties will attempt to modify some portion of the judge’s decision. This aspect is often overlooked by couples who are considering litigation: if one party feels that the judge’s ruling was unfair or is unhappy with the outcome of the litigation, this typically leads to more litigation in the future which wastes even more time and money!

Overall, traditional divorce litigation is not necessarily the ideal route for contentious couples to take and should be the last choice, even if there are major differences of opinion on how certain issues should be resolved, not the first choice!

How mediation benefits warring couples

Divorce mediation, on the other hand, can help ease tensions between the spouses, save time and money, and is more likely to result in an outcome with which both parties are satisfied.

In mediation, each spouse is able to raise their concerns in an informal setting to a neutral third-party mediator. The mediation is more informal and not adversarial in nature. The mediator does not have the power to issue a binding order on the parties (unlike a judge), so it reduces the “winner” and “loser” mentality and primes the couple for more of a compromise mentality.

Also, since the separation agreement only contains the provisions that both parties agreed on, they are less likely to be unhappy with the outcome and have to revisit the divorce through modification.

Another significant benefit of divorce mediation is that it is considerably faster than traditional litigation. The quick process helps reduce the amount of time and money wasted which often ratchets down the tension between the parties significantly.

How a good mediator can bridge the gap between antagonistic parties

Choosing an experienced and knowledgeable divorce mediator is a crucial step in the success of your mediation.

An effective mediator can help previously contentious parties find common ground and encourage a solution-based approach that avoids blame and lessens tension. A mediator who is experienced mediating contentious divorces will know how to keep the parties calm, focused, and remain reasonable about even the toughest issues.

Choosing the right mediator for your divorce

Divorce, by its very nature, is contentious. The high emotions, major life changes, and significant financial consequences that stem from a divorce are all extremely stressful and upsetting. Especially in cases where the divorce stems from infidelity or is one-sided, having a mediator who can defuse escalating situations and encourage the parties to communicate in a fact-based, rather than fault-based way, can be an invaluable asset.

Your mediator should have superior communication skills. They should be able to listen carefully to each party’s side and be able to reframe each side’s argument to increase the effectiveness of the spouses’ communication. They should also be able to explain complex areas of law in a way that is simple and easy to understand.

Your mediator should also have a thorough knowledge of divorce law in your state. While it’s not a requirement for mediators to be family lawyers, many are because of their education, professional experience, and familiarity with the state statutes. Further, your mediator should have not only general experience with divorce mediation, but specific experience with couples who are querulous.

Picking a mediator who can stay neutral and unbiased helps encourage each side to be open to communication and reduces the risk of one party feeling that the mediation is too one-sided.

Tips on ensuring your divorce mediation is a success

There are some simple steps you can take to increase the likelihood of your mediation being a success:

  • Hire a competent and qualified divorce mediator with which both parties are comfortable
  • Actively participate in the process
  • Be open to compromise
  • Know what you want before the mediation begins
  • Bring pertinent documents—mortgage, tax returns, bank statements, etc.—with you and know what information these documents contain
  • Don’t feel rushed to agree to terms: take your time to decide
  • Be realistic and practical
  • Understand the issues
  • Maintain control of your emotions as much as possible
  • Don’t lose sight of how an adversarial stance can negatively impact your children
  • Remember that mediation can be positive for both parties and look for win-win solutions

Ultimately, the key to having a successful divorce mediation lies both in the skills of the mediator and the ability of the parties to act in their own best interest: reaching an equitable divorce settlement that is fair while saving time and money and preserving the relationship of the parties for the future.

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