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Mediation Not an Option for Most Divorces

  1 Comment

divorceBesides being nasty, bitter, and sometimes deadly, divorce is big business. Millions of dollars per year are pumped into the courts and into attorney fees to settle costly divorce cases. Last year alone, over tens of thousands of clients nationwide logged onto seeking divorce attorneys. It is generally assumed that divorce will be a long, hard battle, testing emotions and pocketbooks alike.

But is there an alternative? Yes, mediation. It saves time and potentially a lot of money. Surprisingly however, in 2008 only 9% of the thousands of LegalMatch family law clients stated that they and their partner were willing to consider first seeking the advice of a qualified mediator to settle their divorce. 16% stated they did not know what mediation was, and 32% said that they were willing to try mediation, but were unsure of whether their spouse would. Almost 40% dismissed it outright, with the vast majority stating that their spouse would not agree.

At its most basic level, mediation allows the couple to decide their own divorce terms, and not rely on a distant and impartial judge. So why are almost 90% of couples seeking divorce at LegalMatch either unwilling or not ready to perform Mediation, or unsure of what it is? Doesn’t this sound better than putting the future of your loved ones and everything you own into the hands of a 3rd party?

To a rational mind, perhaps. Unfortunately, divorce is rarely if ever rational. Although mediation is quicker and costs less than a divorce; although the agreement has the same effect as a litigated divorce decree; although experienced legal professionals are still involved and still inform couples of the legal ramifications of their agreement, the most likely culprit preventing this streamlined and cheaper alternative is simple: communication, or lack thereof. Emotions run high in divorce, and this means the lines of communication are often severed. Or, disenchanted couples form a “winner take all attitude” and cannot fathom the possibility of sitting in the same room and reaching a negotiated settlement with their spouse, even with the assistance of an experienced mediator.

Mediation is a very different animal from your average divorce settlement. For one, there is no adversarial relationship in the trial sense. There are not two competing family law attorneys zealously advocating for their respective clients. Instead, there is generally one mediator sitting in the room with the unhappy couple attempting to get them to reach a settlement between themselves. This is a difficult step to take, and also a difficult mindset to adopt in the midst of a divorce. The fact that most LegalMatch respondents were unsure of whether their spouse would be willing to try mediation shows that communication has often completely broke down when couples reach the important stage of wanting to officially proceed with their divorce.

It is unfortunate that such a tragic time in a family’s life is further compounded by a messy and expensive court battle. Perhaps if more couples were aware of the benefits of mediation, they could avoid the extra burden placed on everyone by undergoing divorce litigation.

Ken LaMance


  • Mary Ann Heerschap

    I’ll tell you why mediation is not popular is because one party does not want divorce by demand, period. The faithful party hopes that time will heal enough to bring about a change of heart and eventually reconciliation. They also hope that their spouse tires of the other woman or man so this can come about. Psychologists say intimate relationships last about 6-9 mos., emotional relationships about 2 years unless they are secret and, this could last longer.

    It is for the good of society that there be a waiting period for marriage and an even longer one such as what Maryland has – 2 years – for divorce. Most plaintiffs filing for divorce, about 2/3, regret that they did not work harder on the marriage as they trade one problem for another. You know, the grass always seems greener on the other side.

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