Let me start by stating that our Firm is a huge supporter of divorce mediation. Under the right circumstances it is not only a cost effective way to assist a divorcing couple reach an equitable settlement on issues relating to custody, spousal support and division of assets, divorce mediation also paves the way to better communication between them. If there are children involved, divorce mediation can set the stage for more effective co-parenting, a responsibility that doesn't end with a divorce decree.
On the other hand, there are times when divorce mediation is not a helpful solution for divorcing couples. In fact, there are times when divorce mediation can actually be counter productive. Because of the potential benefits associated with divorce mediation, divorce cases are routinely referred to mediation as either a first step or in other cases, as a final option before a divorce or custody case proceeds to trial.
A key determinant to successful divorce mediation is the clients' willingness to negotiate, compromise and operate in good faith. If these important conditions are missing, then the divorce mediation process is likely doomed from the start. Unfortunately, divorcing couples who are clearly uncooperative are rarely disqualified from mediation. Apart from the financial costs associated with participating in divorce mediation when it is unwarranted, the costs associated with the delays in resolving a divorce and/or custody case need to also be considered.
In contested custody cases, the divorce mediation is sometimes purposefully used as a stall tactic to establish status quo. Status quo is basically the idea that the longer things remain as they are, the less likely they are to change. This is particularly relevant - although not always, when relocation or parental alienation issues are concerned. In both instances, unnecessary delays in resolving a custody case may not be in the best interests of the children involved.
The bottom line is the Court and attorneys need to screen clients appropriately for their readiness for divorce mediation. Divorce mediation can be an excellent tool in reaching a divorce and custody settlement but it's not for every divorcing couple. It is important to weed out the divorcing couples who are not appropriate candidates for divorce mediation and to expedite those divorce and custody cases through the litigative process without unnecessary delays.