The easiest way to know which types of divorce shouldn’t use mediation lies in recognizing the following list—which highlights topics such as domestic violence, impaired decision making and a lack of proper legal counsel. Although it’s your decision to make, these are some healthy considerations to keep in mind when contemplating mediation for your divorce.
Are there types of divorce which shouldn’t use mediation?
- Divorces which include a history of severe, life-threatening domestic violence. Some mediators feel it to be inappropriate to mediate any case in which there have been instances of domestic violence at any time. However, I have successfully mediated several cases involving domestic violence issues. The reason for this success lies in the opportunity for the victim to become empowered in the presence of her attorney and the mediator during the controlled setting of the mediation process and thereby re-claim her self-esteem and self-worth. Unlike the courtroom setting, in mediation the parties can negotiate in separate rooms in a safe “peace-tent” atmosphere. If necessary, measures (such as the employment of an off-duty police officer) can be put in place to provide additional security.
- Divorces in which one or both of the parties lack the ability to understand the issues and to make rational decisions. The causes of such inability may include, but are not limited to severe alcohol and drug abuse, mental health issues, and/or other illnesses which may impair decision making. Even in the presence of such conditions, however, if the impaired party is represented by effective counsel and is capable of understanding the consequences of his or her decisions (and/or is represented by a guardian ad Litem) such divorces can be successfully mediated.
- Divorces in which one or both parties are both unrepresented by counsel and have not become familiar with his/her legal rights and responsibilities. Since the terms of the Mediated Settlement Agreement must be incorporated into a Decree, it is important that its terms comply with the legal requirements for divorce. In these types of divorce for example—if there are children involved—adequate provisions must be made for their support, health care, and living arrangements. If a party refuses to acknowledge the necessity to meet these legal requirements, mediation can be difficult.
Reaching A Resolution
All other matters are ideal for mediation. Unlike the litigation process in which the judge makes all of the decisions resulting in a real or perceived win-lose for the parties, in mediation the parties are empowered by self-determination. Only they can make decisions as to the outcome and the problems. Although, the mediator can assist the parties in their problem solving through various techniques, neither the mediator nor the attorneys present may coerce or compel the parties’ decisions. This allows the parties an opportunity to work together to reach a collaborative resolution which can chart a course for their future relationship as parents of their children.
Even in those cases in which children are not involved, parties find that by working together in the resolution of their divorce through mediation, they leave the marriage with an emphasis on the positive are both financially and emotionally more whole than if they had proceeded through litigation.
Suzanne Mann Duvall is a mediator with Burdin Mediations in Dallas. With over 600 hours of basic and advanced training in mediation, she has mediated over 1300 cases to resolution. Ms. Duvall was most recently named “Super Lawyer 2003 & 2004” by Texas Monthly magazine.