Is there a type of person who shouldn’t use collaborative divorce or divorce mediation?

I’m a collaborative divorce and divorce mediation attorney. As you have read in this blog over the last several years, there are a great number of benefits to using both methods to resolve issues so that divorcing couples can reach a divorce settlement fairly and swiftly. Yet as firm a believer as I am in both methods as effective means to end a marriage with minimal hurt and stress, some divorcing couples are not suited to collaborative divorce or mediation.

Participants in a collaborative divorce or mediation must be willing to compromise. That means being able to accept that you will not get everything you want. You may not even get your counter-offer. But if you’re a person who cannot compromise or if you are unable to consider that a result that you can live with may be okay, then litigation might be a better course of action.  It is unlikely that you will get everything you want in litigation either, but it will be the judge making the decision, not you.

Collaborative divorce and mediation might not be the best option for extraordinarily competitive people. That’s for good reason. You don’t enter into mediation or collaborative divorce “to win” because the reality is that winning usually means your spouse will have “to lose.”  The idea is to work with your spouse to come up with an agreement where both parties feel like they have met their highest priorities.  This is sometimes called a “win/win” solution.  If you can’t accept that, then litigation is a better option.

Other people who may not be a good fit include those who have difficulty articulating what they want, even in a smaller hearing like a mediation or collaborative divorce proceeding. Communication and the ability to understand and express your desires is one of the most critical aspects of both mediation and collaborative divorce. If you have trouble in this area, then you may end up with a result that does not factor in your desires.  In that case, litigation, where a judge makes the ultimate decisions, could be a better option.

People who are unwilling to work as hard as their attorneys or mediators are also not good candidates for mediation or collaborative divorce. By that I mean there’s quite a bit of homework to do to prepare for both processes. There’s collection of financial records, insurance information, etc. There is also preparing for meetings and actively participating in them when they occur.  It’s time-consuming and sometimes emotionally draining work but critical to both mediation and collaborative divorce. In litigation, your attorney collects all the information and speaks for you in court and in negotiations.   This  can be time-consuming and, as a result, costly. But there are people who prefer to let others do the work. If you can afford rates ranging from $350 per hour on up, more power to you.

Finally and quite seriously, victims of domestic violence are usually not good candidates for mediation or collaborative divorce. Why? Anxiety and fear. To have a successful outcome in mediation or collaborative divorce, there needs to be a certain level of trust that the other party will be honest, forthright and adhere to what’s agreed upon. There’s no room for fear or intimidation. A victim of domestic violence, rightfully so, does not have that trust of his/her spouse. In that case, it may be in their best interest to dissolve the marriage in litigation.

People choose mediation and collaborative divorce for different reasons. One of those has to be they are willing to at least consider their spouses needs and desires and that they are able to compromise. If you choose mediation or collaborative divorce because you want to end the marriage quickly to save money and are not willing to compromise, chances are you might be happier if  you chose litigation from the start.

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