When is Divorce Mediation Not Recommended?

July 10, 2024 O'Connor Family Law Divorce

You may have heard that divorce mediation could save you time, money, and stress compared to other types of divorce, but despite its extensive benefits, mediation may not always be the best option available to you. When you’re looking at your divorce options in Massachusetts, it’s important to consider all of the details in your case. After all, there are different types of divorce for a reason… the Massachusetts divorce process is far from one-size-fits-all. If you’re considering mediation, you should know the circumstances where this type of separation might not be the best option.

Divorce mediation may not be recommended if there is a history of abuse or extensive lying in your relationship. While every case is different, these factors may make the mediation process more difficult or less effective. Below, we have broken down some of the main reasons why divorce mediation may not be recommended in a Massachusetts divorce case.

Pro-tip: If you’re looking to learn more about the mediation process and the benefits of divorce mediation, check out our FREE complete guide to divorce mediation.

5 Reasons to Reconsider Mediation

Here are a few cases where we would recommend non-mediation-based forms of divorce that minimize contact between spouses…

  1. There is a history of domestic violence. If either spouse has perpetrated physical abuse against their partner, or has been known to do so to past partners or other individuals, mediation might not be the best option for you. Mediation involves a lot of communication and a certain degree of trust. Of course, your mediator is there to help you feel safe throughout the process but if there has been physical contact or threats of abuse that make you feel unsafe, you should discuss your circumstances with an attorney. Other forms of separation are preferable in case of domestic violence because your attorney can take steps to minimize contact between you and your ex, ensuring your well-being. Throughout the divorce process, your safety should always be the first consideration. If you have reason to believe that your soon-to-be-ex could cause you physical harm, you should learn more about restraining orders and ask your attorney if a protective order would be advisable in your circumstances. Note: We know that this is an extremely difficult situation to be in. We have compiled a list of resources for anyone who is struggling with an abusive relationship. As a firm with several domestic violence survivors on our team, our heart goes out to you, and please put your own safety first. If you would like to learn more about filing a restraining order, please feel free to contact us or explore our resources more in-depth.
  2. There is a power imbalance. Mediation involves negotiation between two parties. This can be difficult when there is a clear power imbalance between spouses. While this is something that a skilled mediator may be able to mitigate (and definitely one of the most important questions to ask your mediator before hiring them), certain levels of imbalance are not ideal for forms of Alternative Dispute Resolution including mediation. If it seems as though an agreement was coerced or created under forms of duress, a judge may reject a separation agreement. The existence of a strong power imbalance between parties may mean that having attorneys negotiate on the parties’ behalf is preferable in order to ensure a fair agreement.
  3. There are substance abuse or mental health concerns. If either spouse struggles has a severe drug or alcohol addiction, this may complicate mediation processes. This can overlap a bit with the above point by creating a natural power imbalance and can also bring up concerns of whether the party in question is capable of making sound decisions throughout the mediation process. For example, if an individual is under the influence during a mediation session or signs separation agreement documents while under the influence, there may be concerns as to whether the person was actually able to negotiate and agree to the terms in their condition. Depending on the circumstances, an individual with significant mental health concerns may also be the subject of decision-making capability concerns.
  4. One or both parties have a history of lying or hiding assets. As we mentioned earlier in this article, mediation requires a certain level of trust. You don’t need to be best friends to make mediation work, and there can even still be a fair level of tension (that’s what mediators are for), but if you suspect that your spouse will lie or produce false documentation on their financial statements, then you might want to consider a more hands-on approach with an attorney.
  5. Either party does not consent to mediation or separation. Mediation is a voluntary process. That means if one or both parties does not consent, there can be no mediation. Even if you are absolutely set on going through the mediation process, your spouse will need to be present for and actively negotiate in mediation sessions. If they are not open to such a process, then you may need to consult with an attorney to determine how to proceed. Read: Can I Still Get a Divorce If My Spouse Wants to Stay Married?

It’s true that mediation can be an ideal path for many separating couples, but it’s important to consider your own circumstances before choosing a path to divorce. If you are unsure which direction to go, a Massachusetts family law attorney can help outline the benefits and risks of mediation and other divorce types. Our divorce mediators at O’Connor Family Law are here to help you navigate the legal system with grace. Contact us to schedule a free case evaluation with a member of our team today.

Get a Team That Gets It

Looking for a Massachusetts divorce mediator? Our team of experienced mediators is here to help you navigate the mediation process as painlessly as possible.

Every single one of our attorney mediators has personal or familial experience with family law. We get it because we’ve been in your shoes, and that’s why we’re so passionate about helping you find your brighter future.

To learn more about how we can help, contact us to schedule a free case evaluation with a member of our team.