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Divorce mediation is a time-limited, confidential process in which both you and your spouse meet with a neutral third person who helps you decide on the division of parenting responsibilities, where your children will live, how decisions will be made, and the financial issues of property and support. In many, but not all cases, mediation yields a more satisfactory resolution than an extended legal battle. How do you know which is right for you and in the “best interests” of your children?
While every case is unique, here are some broad guidelines:
Consider litigation when:
- There is a history or current threat of violence in the family. You cannot talk or negotiate freely if you fear for your safety.
- Animosity between you and your spouse is so great you could not sit in the same room together. If being together triggers severe migraines, better to leave the direct communication to an attorney.
- Your partner refuses to disclose financial information. Good faith negotiation cannot occur if one person is withholding vital information.
- You or your partner are unwilling to discuss, even with a third person, the choices available.
- Your partner is unlikely to keep regular appointments.
Consider mediation when:
- You are most concerned about your children’s well being. Research shows that when there is less parental conflict during and after the divorce, children adjust more easily and are more likely to meet their potential as they reach adulthood.
- You are considering joint or shared custody. Mediators are trained to write detailed agreements covering a wide range of issues and situations.
- Despite intense hurt or anger, you want to keep the process as civil and peaceful as possible. Mediation offers an opportunity to improve and keep the lines of communication open for future cooperation as parents.
- You are unable to spend thousands of dollars in court costs and lawyers’ fees.
- You want to maintain some control and dignity during a very difficult time. During a separation your self-esteem can get pretty battered. The winner/loser mentality of the litigation process often aggravates those feelings. Mediation, on the other hand, rests on the premise that each person has legitimate concerns.
Common Misconceptions About Mediation
I’ll be pushed into compromising or agreeing to something that is not in my best interests.
A professional mediator will keep you on task and help you consider many options, possibly even ones you hadn’t thought about. He or she will help you search for win-win solutions, and will not pressure you to accept something you don’t want. Assuming the mediation is voluntary rather than court-ordered, you can stop the process at any time and return to the adversarial process if you wish.
Without my own counsel there to advise me, I won’t be able to manage.
There is always an opportunity, actually encouragement, to consult with counsel or other experts between sessions and to bring that knowledge to the next session. There are also hundreds of books and articles on children and divorce, legal rights, and financial matters.
The sessions will deteriorate into mudslinging and rehashing old arguments.
There will be some conflict in the mediation (otherwise you’d still be together). However, a competent mediator will not allow name-calling or abusive behavior. Blaming and counter blaming will be redirected back to the task at hand and focused on the future.
S/he is so unreasonable we would never get anywhere.
As a neutral party, the mediator asks questions aimed at defining the concerns underneath the positions staked out. You may also be surprised at how civilized your partner’s behavior is with the third party mediator present, compared to interactions outside the mediation room.
If you are still unsure which way to proceed, consider consulting with both a mediator and an attorney. Ask questions about the procedure, time frame, costs, payment method, the percentage of cases they successfully settle, other consultants you would need. Remember that you can stop mediation at any time and hire a lawyer to litigate. Or, if you’ve started working with a lawyer, you can shift to mediation, then return to a lawyer for legal advice and filing your mediated agreement with the court.
Is this legal advice?
This site offers legal information, not legal advice. We make every effort to ensure the accuracy of the information and to clearly explain your options. However we do not provide legal advice - the application of the law to your individual circumstances. For legal advice, you should consult an attorney. The Maryland State Law Library, a court-related agency of the Maryland Judiciary, sponsors this site. In the absence of file-specific attribution or copyright, the Maryland State Law Library may hold the copyright to parts of this website. You are free to copy the information for your own use or for other non-commercial purposes with the following language “Source: Maryland's People’s Law Library – www.peoples-law.org. © Maryland State Law Library, 2010.”