The False Promise of Mediation


Mediation is one of those things that sounds good, but is difficult in practice. Countless times I have interviewed people on the verge of divorce who expressed a desire to avoid the cost of litigation by mediating their dispute.

The problem with mediation starts with the mediator. There are no licensing requirements to be a divorce mediator. One would think that at a minimum, the mediator would be familiar with New York divorce law so that it could be applied to the parties situation. That is not always the case. I have seen many mediated agreements that flatly fail to comply with the law and are basically useless.

Mediation assumes that both sides are committed to resolving the case in an amicable fashion. That is not always true, as divorce is not only a financial process but an emotional one as well. Many times I’ve seen parties waste thousands of dollars in mediation only to give up without an agreement. This happens when one party is angry or wants to “win” in the mediation.

Finally, there is the ethical issue. Occasionally, the mediator drafts the separation agreement once an agreement in principle is reached. Although the mediator claims he or she is not representing either party, there are always small issues that can go either way.

A better approach is collaborative divorce. In this process, both sides retain their own lawyers with the express understanding that the process is to resolve the dispute. Both lawyers agree that if settlement talks break down, neither will represent their client in the forthcoming litigation. Each side therefore gets unbiased advice, and can make an informed decision on whether to settle their dispute.

The bottom line is that if you are going to try divorce mediation, proceed very carefully. While it can work, many times you will end up in litigation anyway.