The Pros and Cons of Divorce and Custody Mediation

Posted on Apr 26, 2021 by Katie Carter

The appeal of doing mediation is, I think, pretty clear. Rather than having a traditional, more adversarial divorce, you and your soon to be ex can share a mediator. You can sit down and work through your issues together, rather than hurling abuse at each other across a courtroom.

I spend a lot of time discussing the advantages of reaching an agreement, though usually I advocate using an attorney (and the negotiation process), as opposed to mediation. There are a lot of reasons for that and I wanted to go into a little more detail today.

Negotiation versus Mediation

Negotiation is a word we typically use to describe a separation agreement case where attorneys are involved on both sides, and the parties negotiate the terms of their agreement back and forth over a period of time.

Mediation, on the other hand, is where a mediator – who may or may not be a trained attorney – works to help the parties reach a resolution.

Either way, the end result (the separation agreement) is the same. But the path to that ultimate resolution can look a little different, depending on the case involved.

Are there other options for resolving my divorce, other than negotiation and mediation?

Yes, of course!

You could also litigate your divorce, which means that, rather than reaching an agreement, you go to court and let the judge decide how your assets and liabilities will be divided.

There’s also collaborative divorce, which involves an entire team of professionals in the process of negotiating a separation agreement.
You don’t have to hire an attorney, either, necessarily. You could do it yourself, if you wanted, provided you were able to draft a good enough agreement (no small feat, I should add).

What are the advantages of mediation?

Mostly, when people talk about advantages of mediation, they’re comparing it to a litigated divorce. Assuming you can reach an agreement, it’s often cheaper to mediate a divorce than to litigate it.

Compared to negotiating a divorce, though, it’s probably fairly comparable. The main difference is that a mediator can be shared, and attorneys cannot. One party can have an attorney while the other is unrepresented, but no one divorce lawyer can represent both parties. It violates our ethical rules, so there’s no exceptions to that, ever.

Often, though, a mediator will charge a higher hourly rate than an attorney, so it’s not necessarily even cheaper than having one attorney on each side. It is probably cheaper than going to court, though, so that’s a big plus.

Getting an agreement in place is almost always beneficial. People who are able to reach an agreement about how their assets and liabilities and children will be divided and shared are often happiest, at least compared with those who had their case decided by a judge. A judge doesn’t care too much about maximizing the value of an asset or coming up with a creative solution; in general, judges resolve cases as quickly and “equitably” as possible. Equitable, though, doesn’t necessarily mean fair, and doesn’t automatically assume 50/50. It also doesn’t take into account which 50% is most valuable to you, or what priorities you (or even your spouse) have in the future. Control over how everything is divided is a nice feature of a negotiated or mediated divorce.

What are the disadvantages of mediation?

Mediation carries a LOT of disadvantages, too. The biggest one is that mediators are usually not divorce attorneys (though they can be) and, even if they are, they haven’t been retained to act in that capacity. When a mediator is mediating, its not his or her job to tell you (1) what you are entitled to, (2) what a judge would do, or (3) that you should hold out for or ask for more.

Those are pretty big issues, unless you’re pretty well versed in the ins and outs of family law. It’s easy to make a mistake if you’re not informed enough and, since the mediator’s job is just to get you to agree to something, you likely won’t hear much support, encouragement, or representation from him.

Having an advocate on your side, especially in a case where your husband can be a bit of a bulldozer, is important. You may be completely unsuited for mediation, too, if the balance in your relationship is too tipped in his favor. Abusive relationships especially are typically not ideal for mediation; your husband may be pushing mediation, not because he feels it will be fairer or cheaper or faster or whatever else he might tell you, because he thinks it’ll be an easy opportunity to take advantage of you.

Mediators often draft agreements, too, which can be disastrous. In fact, I once had lunch with a mediator who told me a really horrible story. He said that he had once negotiated a lump sum child support award between a dad and a mom. The parties signed the agreement, the money was paid, and then the mom took the dad to court. She petitioned for child support, and the judge granted it. He said it was in the best interests of the child to receive spousal support, that it was paid monthly, and that the lump sum he had paid before was a gift.

We represent moms only, so this was great for mom – and that’s awesome for her. But it also goes to illustrate the point that a non-attorney mediator probably shouldn’t be writing an agreement knowing so little about how child support awards are handled in Virginia. (And this guy had been a mediator for more than 20 years!)

Family law attorneys have two jobs: (1) to get you divorced or to resolve your custody dispute today, and also (2) to minimize problems later on down the line.

This is a good example of where #1 was achieved, but where #2 was anything but. When you have issues – when your agreement is vague, or ambiguous, or just plain wrong – you may end up spending more money later on to resolve a dispute about it. (Or, as in this case, double paying child support!) It’s a risky little maneuver, and one that I wouldn’t recommend.

Does that mean I shouldn’t try to mediate my family law case?

No, not necessarily. But I do think it means that you should go into it with your eyes wide open, and knowing what the potential issues are.

You want to mediate your case? Great, but do a couple of things for me. First, have a consult with a local family law attorney. Ask your questions. Get some answers. Figure out want a range of acceptable outcomes might look like for you. Then, go to mediation. Second, take the draft agreement, or proposed terms, back to the attorney to have them review, before you sign.

You can negotiate from that point, if changes need to be made before you sign. But once you sign, you’re stuck. It’s important to get it right the first time, or you may find that you’ve settled for way less than you should have. Not knowing any better, or not understanding, is not going to be an excuse!

Mediation has its place, and it can be helpful. But it’s no substitute for talking to someone about your case and getting specific information catered to you. For more information, or to schedule a consultation, give our office a call at 757-425-5200.