Mediation offers separating couples a chance to collaborate with a neutral third party to negotiate and resolve issues involved in their divorce. While it can be a faster and potentially less expensive option to courtroom battles, it may not be the best approach for everyone going through divorce.
When is mediation not recommended?
As effective as divorce mediation can be for some, it may not work for everyone. Here are several scenarios where mediation might not be a suitable course of action:
- When it involves high conflict or abuse: Mediation can be unsafe and unproductive if there is a history of abuse in the marriage. The power imbalance within an abusive relationship can make it difficult for the victim to advocate for their needs fairly.
- When parties are not willing to participate: For a mediation to be successful, both parties must be willing to openly communicate and make informed decisions. If one spouse resists settling on a mutually beneficial resolution, it can stall the entire divorce process.
- When a spouse is hiding assets: Honesty is vital in mediation. If a spouse withholds information on property or finances, it may be best to skip mediation and settle property distribution in court.
- When complex issues are involved: Although mediators are well-versed in the law and are qualified to draft settlements, some situations might require more formal legal representation. Not all mediators are lawyers. Their backgrounds can span other various professional areas such as social work, counseling or mental health.
- When there are doubts on legal enforceability: Mediation agreements are not court orders — they are not legally binding. While most people abide by them, enforcing them can only be accessible with a court-sanctioned decree if your spouse violates the agreement.
If you initially choose to go through mediation but are unable to enter an agreement, you will still be asked to go to court for a judge to rule on your divorce.
Does this affect how effective mediation is?
Despite these potential drawbacks, mediation can still be a valuable option for many divorces in Illinois. The American Bar Association notes that up to 80% of mediations end amicably and have a fairly high compliance rate. Consulting with a legal professional may help you decide if mediation suits your situation and answer any challenging questions you may have regarding your divorce process.