When is Divorce Mediation Not Recommended?

Divorce mediation is not recommended when it is unlikely to result in a fair and equitable outcome for both spouses, or when the likelihood of success is low. The circumstances in which divorce mediation is not recommended include a history of domestic abuse or violence, an unwillingness to compromise by one or both spouses, a lack of transparency, a relationship with persistently hostile and contentious interactions, and a marriage with complex financial issues. Divorce mediation is a collaborative process that requires both parties to be willing to communicate openly, compromise, and engage in good faith negotiations.

Divorce mediation is not recommended in the circumstances listed below.

  • there is a history of domestic abuse or violence
  • there is an unwillingness by either spouse to compromise
  • there is a lack of transparency between spouses
  • the spouse’s relationship is hostile and contentious
  • there are complex financial issues

A power imbalance or a history of domestic violence makes fair negotiations difficult, leading to inequitable outcomes from mediation. An unwillingness to compromise, a lack of transparency, and hostility between spouses significantly reduce the likelihood of success when mediating a divorce.

A History of Domestic Abuse

Divorce mediation is not recommended in situations when there is a history of domestic violence or emotional abuse in a marriage. The mediation process requires both parties feel free to agree or disagree on the terms of a settlement without fear of future abuse. Physical or emotional abuse creates a power imbalance that compromises the mediation process.

In Florida, victims of abuse can request that their custody issues not be sent to mediation. When judges discover a history of domestic violence that can impede the mediation process, they are required to grant those requests under Florida statutes 2021 ยง 44.102(2) (c). If spouses opt to employ mediation despite a history of abuse or bullying by the other spouse, they can request to meet separately with the mediator, even if the mediation is conducted online.

An Unwillingness By Either Spouse to Compromise

Divorce mediation is not recommended in situations where one or both spouses is unwilling to compromise. Successful divorce mediation requires that both spouses be open to compromising on issues such as child custody and asset and property division in order to reach a mutually agreeable settlement.

A Lack of Transparency Between Spouses

Divorce mediation is not recommended in cases when there is a lack of transparency between the divorcing spouses. A lack of transparency reduces the ability of the spouses to effectively communicate, negotiate, and reach an equitable resolution. A lack of transparency can negatively impact negotiations on issues such as child custody (time-sharing), and the division of martial assets and property. In the case of child custody, honest communication about each parent’s ability and willingness to care for their children is essential to insure that custody arrangements serve the best interests of the children. In the case of assets and property, hiding assets, income, or property makes it impossible to accurately document marital assets, thereby preventing an equitable division of property. Both spouses must have a clear understanding of the marital estate in order to agree on a fair division.

A Hostile and Contentious Relationship

Divorce mediation is not recommended when the divorcing couple has a hostile or contentious relationship. Animosity significantly reduces effective communication and negotiations during mediation sessions, making it challenging to mediate and reach mutual agreements. Hostility and contention lead to an unwillingness to compromise, which is essential for resolving issues like child custody, dividing property and assets, and determining alimony through mediation.

Complex Financial Issues

Divorce mediation is not recommended when the marriage involves complex financial issues such as small business ownership. Intricate financial matters complicate negotiations and make it difficult to reach mutual agreements during mediation sessions. Complex financial assets, such as small business ownership, require detailed evaluation and documentation, often necessitating the involvement of financial experts, forensic accountants, and business valuators. These professionals help provide accurate assessments of the business’s worth, which is crucial for an equitable division of property and assets. The need for expert analysis adds layers of complexity that mediation alone may not effectively resolve.

The presence of a small business can impact decisions regarding spousal support and the financial stability of both parties post-divorce. In cases involving complex financial issues, alternatives to mediation such as arbitration or litigation, supported by financial and legal experts, are more effective in ensuring an equitable resolution.

What Are the Alternatives When Divorce Mediation is Not Recommended?

Alternatives to divorce mediation include litigation, and collaborative divorce. Divorce mediation alternatives should be explored when the circumstances of the marriage make it unlikely that the divorcing couple will be able to successfully reach a divorce settlement agreement.

Litigation

Litigation is a better solution for divorce cases that involve issues of abuse or highly contentious or hostile relationships, making it difficult for the couple to negotiate in a fair and productive manner. Divorce litigation takes place in the structured and safe environment of the court. For divorcing couples with a history of domestic violence or abuse, the formal court setting helps ensure the abused spouse’s legal rights and safety are protected. In the case of a highly contentious divorce, a judge makes decisions on issues such as child custody and asset division, ensuring that both party’s rights are protected.

Collaborative Divorce

Collaborative divorce is a better solution for marriages that involve complex financial issues such as ownership of small businesses or real estate. The collaborative process allows them to work with attorneys, financial advisors, accountants, and business valuation consultants in a cooperative setting to create an equitable division of marital assets.

When Is Divorce Mediation a Good Idea?

Divorce mediation is a good idea when both spouses are willing to communicate openly and honestly, compromise, and work collaboratively with the goal of finding a mutually acceptable resolution. Mediation for divorce is particularly effective when there is a relatively equal power dynamic, and both parties are committed to resolving issues amicably. These circumstances create the greatest chance of reaching a settlement that is agreeable to both spouses.