Is Divorce Mediation Right for You? Pros and Cons and What to Expect

Mediation is often seen as a more civilised method of resolving separation and divorce issues than traditional legal proceedings. It is increasingly in tune with Australian society, where the psychological welfare of the individual is taken very seriously. The age of grit your teeth and pull yourself together may be all but over, barring the kind of backlash that can happen with such trends, and many would now argue that the hippies were right, and we should love everyone and proceed with wide-eyed goodwill, determined to smooth over any dispute as peaceably as possible. That is one way of describing mediation.

But anyone who thinks mediation is a naïve way to go about sorting out the explosive, destructive impact of divorce is missing the point. Let’s look at the general idea of mediation and then the very serious business of making it effective.

What Exactly is Mediation?

The traditional way of resolving a legal dispute is litigation: taking it to court, with all the expense and potential unpleasantness that can cause. Mediation is an alternative to that.

The word comes from the same place as “medium,” meaning average or something occupying the middle point of a scale. “Intermediate” is another word of the same ilk. A mediator, then, is someone who occupies the middle ground and operates as a kind of referee or umpire, enabling a game (or in this case, a serious process) to go smoothly and with no unfair advantages playing a part.

In a divorce case, those advantages can involve force of personality, physical or economic strength, and even intellectual ability. To this extent, mediation is about helping the weaker party, preventing them from being blown away by someone better at this kind of thing than they are. “This kind of thing” can mean arguing, making a point, and undermining the counterarguments.

That, of course, is what goes on between two individuals in private and what constitutes what we call a “row” or a quarrel—and Americans call a “fight,” even when it is verbal rather than physical. It is also what courts of law are all about, with lawyers attempting to make their client look good while casting doubt on what the opposing side is saying. This kind of thing makes good television and film drama, but clever arguments and the finding of loopholes have nothing to do with what is right and wrong. It is seeking to gain an advantage through legal knowledge and skill, and it is perfectly legitimate.

It is, though, often just what a marital breakup doesn’t need: one more loud, damaging battle. Mediation means coming to an agreement, and it works best if both parties are keen to resolve matters by negotiation. It involves give and take, and it makes concessions more powerful than demands. It is, in a word, civilised.

Why Doesn’t Everyone Use Mediation?

Families that have gone through mediation and come out the other side feeling okay about what they have received from what was available often recommend it to friends and family because it is far less traumatic than litigation. In many ways, it takes a couple back to happier times and the reason they got together in the first place, before life got in the way and whatever caused all the trouble did its damage.

It is partly a question of personality; mediation requires the laying down of arms and the setting aside of grievances. It is how terrible international conflicts have been brought to a peaceful conclusion, where partisan groups have agreed to end the relentless tit-for-tat that only prolongs the agony.

Mediation in Australia

Mediation in this country is carried out by trained professionals through Recognised Mediation Accreditation Bodies that work to the National Mediator Accreditation System (NMAS). In other words, this is taken very seriously, rather than being a pastime for kindly souls who don’t like to see discord. That may be exactly why they signed up for the training in the first place, but they will have been trained in the more hard-headed side of it, because they must be the rock on which the whole process depends—impartial and conciliatory, but determined to lay down and enforce boundaries.

While not trained in law to the same extent as solicitors, they need to have a precise understanding of relevant legislation. Mediators attached to law practices are part of a team, but playing in a different position, if you will, or using different tactics from their solicitor colleagues. Same rule book, different way of enforcing it, same objective.

Mediators come from all walks of life and have various personalities, as we all do. What sets them apart is a basic desire for justice in an imperfect world, and they are trained to deal with different characters in an even-handed way, while keeping the process moving and keeping the resolution in sight. If everyone involved saves some money and endures less distress, that has to be a good thing.

Is Divorce Mediation Right for You? Not If Violence is Involved

Mediation is appropriate in the vast majority of cases, but not all. Violence and domestic or sexual abuse are beyond the pale here and need to be dealt with in a more traditional way. Even if the abuse has now stopped, there may be an undercurrent of fear that makes the innocent party wary of sparking it off again. Where court decrees such as restraining orders are in place, a situation may have calmed down, but the reasons for the order have to be addressed, and mediation cannot take place while this hangs in the air.

Definitions of violence and abuse can vary, and this is something that must be established before mediation can be considered. Such a sensitive subject is bound to raise the tension level between the two parties, but the victim of violence or abuse must stand up for themselves in order for the process to begin. If it has to go to court, so be it. A good mediator will sense undercurrents of trepidation, so the issue must be resolved in advance. There are three levels of screening and risk assessment for family violence, and a good family law firm will advise a potential client and help them make the correct decision.

What Can You Expect if You Use Mediation for Divorce?

The atmosphere in mediation is likely to be a little more relaxed than a courtroom situation, given that all parties are intent on resolving issues without animosity or aggression. On the other hand, the two parties—or those who this means the most to—have their future on the line, so there is bound to be tension until the process begins to work and a just, reasonable result comes into view.

You're still going to get divorced, and you're probably not going to get the deal you would like ideally, but the situation will be resolved in an acceptable way, and you can get on with the rest of your life.

If mediation sounds like the way you would like to approach your divorce, contact a good family lawyer and give them the facts of your case. If they believe mediation is appropriate for you, then you can proceed, and at least you will be on track for a resolution without unnecessary friction.