If the only tool in your toolbox is a hammer, everything looks like a nail. Similarly, if a business practices exclusively in the area of divorce mediation, they probably think every divorce should be mediated. However, in our experience, less than 5% of divorces are appropriate for traditional mediation.
For a divorce mediation to be successful and end in a fair and equitable settlement, several factors need to be present. First, both of the parties should have similar financial circumstances (i.e. have equal earnings and relatively equal separate assets). Second, both parties should be equally agreeable to the divorce, and they should have an amicable relationship with one another. Third, both parties should have an excellent understanding of the other party’s income and finances, and have equal access to the other’s financial statements. Finally, both parties need to be equally competent negotiators and be in equal negotiating positions. If any of those factors are not present, the divorce is not a good candidate for mediation. Thus, you should proceed with caution before electing mediation.
If you are seriously considering mediation, here are ten additional reasons you should think twice before proceeding.
1. No one is looking out for your interests.
This may surprise you, but it is not the job of the mediator to look out for your interests. Rather, the mediator’s job is to act as a neutral party to facilitate the parties reaching their own agreement. Any agreement. Even one that is unfair or inequitable. In fact, since a mediator is legally bound to be neutral, he or she cannot alert or advise you if an agreement is unfair. Worse yet, some mediators will subtly push the parties into accepting an unfair agreement simply so they can claim that the mediation was a “success.” This is why you are supposed to retain a divorce attorney to advise you in the background during the mediation process.
2. You still need to hire an attorney to represent you during the mediation process.
Did you know that, in addition to paying for the mediation, you are supposed to hire an attorney as background representation during the process? Not only is this recommended, it is critical so you don’t end up accepting an inequitable marital settlement agreement. Do you know how many people follow this recommendation? Almost none. Why? Because people don’t want to have to pay for mediation and for a divorce attorney. One of the main reasons that people choose mediation in the first place is that they think they can get divorced without getting attorneys involved. This is one of the fundamental problems with how mediation is sold to the public – as a cheaper alternative to traditional divorce litigation. It’s not.
3. Mediation can cost as much or more than a traditional divorce.
People choose mediation because they think it will be less expensive than a regular litigated divorce. While it can be, this is frequently not the case. People entering mediation are almost always surprised to hear that they should hire their own attorneys to represent them in the background during the process. Once they hear that advice, much of the appeal of mediation disappears. That is why most people ignore that crucial advice, and proceed with mediation without representation.
Another, frequently overlooked aspect of mediation that can end up making it more expensive than traditional divorce is the high risk of an unfavorable marital settlement agreement. Lack of knowledge about your spouse’s financial assets, ignorance of the law, and poor negotiating skills can easily cost you tens or hundreds of thousands of dollars when you end getting less than you otherwise would have if you had retained a divorce attorney . You have not saved money if you negotiate a poor marital settlement agreement.
4. There is no guarantee you will settle your case in mediation.
If you do proceed with mediation correctly and hire a divorce attorney to represent you in the background, mediation will likely cost you and your spouse anywhere from $10,000 to $30,000 — and you may not succeed in reaching an agreement with your spouse. If you don’t reach an agreement, you may have to start the process over again with traditional divorce litigation. And any money you have spent on mediation will have been wasted, sent down the drain.
5. No one is going to make sure you get accurate financial information from your estranged spouse.
In traditional divorce, your attorney will use the process of “discovery” to obtain all the financial information needed from your spouse to accurately analyze the financial aspects of your divorce. Divorce attorneys use a variety of methods to obtain this information, such as interrogatories, requests for production of documents, subpoenas and even depositions. They have experience in knowing when a person is being dishonest, or is hiding information. More often than not, discovery reveals that the spouse was trying to hide assets or underrate their value.
Mediation, by contrast, relies on voluntary financial disclosures by each of the parties. What that means is that you are unlikely to get accurate financial information from your spouse. There is simply too much incentive to mislead, and virtually no repercussions if caught. If you think your spouse is going to be honest and open in mediation, I have a bridge I would like to sell you.
6. You will have to negotiate with your spouse.
Mediation also means that you will have to negotiate your divorce settlement directly with your spouse. Yes, you. That is what mediation is about. This is incredibly difficult in most cases. You are getting divorced for a reason. Nine times out of ten, to put it politely, it is because you and your spouse are estranged. It is virtually impossible to be clearheaded and in equal bargaining positions in such circumstances. Negotiating a fair result will be difficult to impossible.
7. No one will tell you to walk away from mediation without reaching an agreement.
The goal of the mediation process is to get the parties to reach an agreement on their own. Mediation is not designed to ensure that whatever agreement you reach is fair and equitable. As a result, mediators will not tell you that your agreement is unfair or unworkable. They will not tell you that you should walk away from the mediation. They want you to sign onto an agreement so they can chalk you up to one of their “successes.” We cannot emphasize this enough — mediators do not represent you or your interests.
8. The result of your mediation most likely will not be fair and equitable.
If you do reach a settlement in mediation, it will most likely not be fair and equitable for the reasons stated above. One spouse will walk away as the “winner,” and one spouse will walk away as the “loser.” The loser-spouse usually doesn’t realize they are the loser until they see how little they receive in the divorce, and have a hard time supporting themselves. I can’t count the number of cases in which we have had people approach us to reopen a divorce settlement agreement after mediation, because the agreement was so unfair. Literally 99% of the time we have to tell them it is too late, and that there is nothing we can do. Once you have signed a marital settlement agreement, you have signed away your rights.
9. There is a good chance your marital settlement agreement will be poorly drafted.
Do you know what is worse than realizing that you have signed an inequitable marital settlement agreement? Realizing that it is poorly drafted, and that its terms are vague and difficult to enforce. This happens all the time. The reason? Many mediators never practiced divorce law (or any area of law, for that matter). In most states there are few, if any, qualifications to become a divorce mediator.
10. You will likely regret mediating your case to make your divorce amicable.
The most common refrain I hear from people who come to us for advice after they have signed an unfavorable marital settlement agreement is that they chose mediation because they “wanted my divorce to be amicable.” By the time they see me, their ex-spouse is not doing what they are supposed to do under the agreement, and the parties are no longer amicable. Usually it’s because the settlement is unfair, and our client has little or no effective recourse available to them. Universally, they regret having mediated their case.
So, if mediation is not a good option for most divorces, is there another option?
Now there is. It’s called SnapDivorce.
We invented SnapDivorce to solve the problems inherent in mediation, and in the process of traditional divorce. At SnapDivorce, a team of experienced divorce professionals does all the work necessary to resolve your divorce, fairly and equitably. SnapDivorce will do the “discovery” to identify, value and analyze the marital assets. SnapDivorce will investigate your spouse’s financial records. You don’t have to negotiate with your estranged spouse. You don’t have to pay a mediator and lawyers. Instead, a panel of three experienced divorce attorneys resolves your case with an eye towards what is equitable under the law for both parties. So you are assured a fair and final resolution to the economic issues in your divorce.
And we do it all for a low, flat fee, so you know how much the divorce will cost you before you even get started. Learn more at SnapDivorce.com.
SnapDivorce. Save Time. Save Money. Save Your Sanity.