Red Flags in Divorce Mediation

Red Flags in Divorce Mediation


As part of my duties as Program Manager for Divorce Mediation Group, I meet with many people as they are beginning the divorce process.  We talk by phone or they come in for a consultation.  Generally, it goes something like this:  I explain basic divorce process; we look at the forms required to file for divorce, and I extoll the benefits of divorce mediation.  After the appointment or phone call, they discuss what they’ve learned with their spouse (or they have attended the meeting with their spouse) and get back to me when they want to set their first appointment.  Or sometimes they choose a different option altogether.

Obviously, it is encouraging when people decide to mediate their divorce, either with Divorce Mediation Group or any of the other fine mediators in San Diego.  The reasons for choosing mediation over litigation are numerous and fodder for another blog post, and won’t be explored here. 

There are some scenarios that do not make for ideal launch pads for mediation.  When these situations present themselves, I gently suggest the parties wait before scheduling their first mediation appointment.  In some circumstances I tell them flat out, "Your matter is not suitable for mediation."  Let’s look at a few of these "red flags."

First, Mediation as a Weapon – When someone is eager to start mediation so "he’ll be sorry he ever married me," or "she won’t know what hit her," they are setting themselves up for failure.  The foundation for successful mediation is compromise and civil discourse consisting of proposals and counterproposals.  Resolution of the numerous issues involved in divorce is doomed if either party (sometimes it’s both) willfully undermines the process for the satisfaction of twisting the knife a little farther.

Second, Mediation to Call a Bluff – Occasionally someone will say, "If we start mediating, she’ll see that I’m really serious and she’ll get scared and change her mind about the divorce," or "he won’t go through with it if he thinks he has to pay me support."  The problem with this thinking is that it will probably backfire on the spouse who doesn’t want the divorce; the other spouse most likely does want the divorce and has had weeks, if not months, of time to mentally prepare themselves for it, with or without mediation.

Third, Mediation in a Panic – These situations - - Wife has just discovered her husband’s affair and the condo he bought for his girlfriend or Husband has just withdrawn a large sum of money from the community property retirement account without telling Wife or Wife has packed her bags and is on her way to the airport with the kids - - are not the time for mediation.  In situations like these, I am usually only meeting with one party, and I tell that person that immediate legal action is necessary.  This is when I urge them to contact a family law attorney RIGHT NOW and hand them our list of recommendations.  After the fire has been put out, if the parties agree to mediate their matter, then we can set an appointment, although the chance of a successful mediation involving any of the above scenarios is pretty slim.

The most successful mediations occur when both parties have pulled themselves off the floor and acknowledge the painful reality of the end of their marriage and are ready to do the work to dissolve the union.  When the pain is too new, revenge is too sweet, or the hope for reconciliation is unrealistic, the mediation process will unravel right before their eyes. 

As tempting as it is to schedule a couple for mediation, it makes long-term sense to recognize the red flags and work with them only after they have lowered them.