When Is Divorce Mediation Not Recommended?

Even in relatively amicable circumstances, divorce can be a highly emotional and challenging experience. Some divorcing couples find that mediation is an effective tool for reaching a mutually fair and satisfactory outcome to the process. Mediation involves working with a neutral third party, who guides couples through their conflicts to develop and finalize agreements on various—often contentious—matters.

This can certainly avoid the need for lengthy, stressful, and costly court cases. However, it’s important to understand that mediation is not suitable for all divorcing couples and in all circumstances. Let’s take a closer look at mediation and how to recognize when it might not be right for you.

Understanding Divorce Mediation

The starting point for figuring out if mediation is right for you is to get a solid grasp on what it involves. Sometimes, through understanding the process it can become immediately obvious whether it’s likely to suit you and your relationship with your former spouse.

Put simply, mediation is a process that involves a neutral party helping divorcing parties to negotiate agreements. Some of the elements of divorce that mediation typically covers include:

• Property division
• Child custody and parenting plans
• Child support
• Spousal support

Importantly, mediators are professionals who are entirely neutral—they don’t represent either spouse in discussions or negotiations. It’s also worth noting that while mediators are often experienced facilitators and negotiators, they are not usually able to provide legal advice.

It’s increasingly common for Florida courts to require couples to attempt mediation prior to opting for litigation. However, success is also dependent on each party being willing and able to engage with the process in a safe, honest, and constructive way.

History of Abuse

Perhaps the most obvious situations in which mediation may not be appropriate are those where the relationship has featured a history of domestic violence, abuse, or other forms of manipulation or intimidation.

This is because effective mediation relies on all parties involved feeling safe and free to communicate openly. Relationships that have featured abuse from either party often see the victim experiencing additional emotional challenges, and they may even feel pressured to agree to terms that are not in their best interests. The imbalance here typically makes it harder to reach fair resolutions.

Indeed, the Florida courts recognize the additional challenges presented by a history of abuse and will often waive the requirement for mediation to ensure the victim’s ongoing safety.

Refusal to Cooperate

Naturally, the willingness to fully engage in the mediation process is necessary for a positive outcome. Above all else, both parties must commit to doing so in good faith, including:

• Disclosing financial information honestly
• Considering reasonable compromises
• Communicating fairly and openly
• Navigating conflict reasonably

When one or both spouses are unwilling to participate in this pragmatic way, mediation is unlikely to reach a timely or equitable conclusion. Therefore, a divorce featuring a non-cooperative spouse can make mediation unsuitable.

High-Conflict Relationships or Irreconcilable Disputes

While mediation is designed to help divorcing couples navigate difficult aspects, it is nevertheless the case that some relationships are just too contentious for mediation to be effective.

Some of the common characteristics of this type of circumstance include:

• The couple can’t speak to one another without arguing
• One or both spouses behave in an actively or passively hostile manner
• Frequent displays of blaming behavior
• All-or-nothing thinking, or an unwillingness to compromise
• Consistent breakdowns in open communication

Mediators are professionals who often have training and experience in managing conflict effectively. Yet, they cannot force spouses to agree with one another, compromise, or collaborate. Relationships with high conflict or irreconcilable disputes can see mediation drag on indefinitely without resolution, which is costly and inefficient. As a result, they may not be suitable candidates for mediation.

Complex Financial or Business Assets

It is not just relationship elements that can make a divorce not necessarily suitable for mediation. Divorces that involve especially complex finances or business assets can be too involved and reliant on specialist knowledge for mediators to manage. These cases may include:

• Multiple investment accounts
• Hidden wealth
• Significant illiquid assets
• Businesses owned by only one of the spouses

When a lack of financial or legal expertise is present in these instances, mediated negotiations might not reach a fair outcome. Therefore, they tend to be better suited to litigation in which experienced attorneys and potentially forensic accountants can provide clarity and guidance.

Child Custody Concerns

Mediation is common for helping parents to navigate making effective child parenting plans and establishing fair custody arrangements. However, there are some child custody situations in which mediation is not appropriate.

Usually, this arises when one parent has a history of or accusations related to child abuse, neglect, emotional manipulation, or substance abuse. Mediators often don’t have the expertise to facilitate reaching not just fair outcomes but those that are explicitly in the best interests of the child’s welfare.

These cases are often best handled by experienced family law attorneys and through the Florida family court system.

Alternatives to Mediation

Just because mediation isn’t recommended, this doesn’t mean that spouses in Florida don’t have options. Some of the common alternatives include the following.

Litigation

Litigation is the most common alternative to mediation, involving the case proceeding through the court system. Attorneys on both sides will perform any required discovery or due diligence processes. A judge will then typically receive representations from both parties or their legal counsel, before making legally binding decisions.

Collaborative Divorce

Collaborative divorce often works as a kind of middle ground between mediation and litigation. Attorneys representing both sides will work together with the spouses to reach a fair and legally sound outcome to the divorce. This tends to be less adversarial and costly than litigation, while benefiting from legal expertise.

Arbitration

In some instances, couples find that they are unable to reach an agreement personally, while wanting to avoid litigation. As a result, they may pursue arbitration. This involves a neutral third party—often a retired judge—reviewing the facts in the case and independently making a legally-binding decision on the outcome.

Wrapping Up

Mediation can certainly help streamline the divorce process. However, it is vital to ensure that your circumstances and your relationship with your spouse are suited to this approach.

In either case, collaborating with an experienced professional is key to an effective outcome. If you’re uncertain of which approach is right for you, reach out to our dedicated family law attorneys. We understand the challenges men like you face during the divorce process, and can help you navigate the case in a way that meets your unique needs.