When Is Divorce Mediation Not Recommended?

Very little about divorce is positive but in the best-case scenario of divorce, both spouses reach agreements on major aspects of a Colorado divorce such as child custody, the fair division of assets, and spousal support. Reaching a divorce settlement agreement for a judge to sign into binding orders prevents the need for an expensive and adversarial divorce trial. Many divorcing spouses use mediation to achieve this goal. But is divorce mediation always recommended or are there times when spouses shouldn’t attend mediation?

What Is Divorce Mediation In Colorado?

A professional mediator is a neutral third party who offers creative solutions for resolving disputes, allowing spouses to avoid a trial. Both spouses and their divorce attorneys meet in a safe space with a professional mediator. The mediator has an in-depth understanding of the state’s requirements for child custody, child support, and the fair and equitable division of marital assets. A mediator helps facilitate communication and compromise between spouses to resolve disputes so they can present a signed agreement to the judge who issues their divorce decree. Between 50-80% of mediation sessions end with an agreement.

When Should Divorcing Spouses Decline Mediation?

Mediation is recommended for most divorcing spouses. A judge may order spouses to attend mediation at any time before their court date or during a trial if they think the spouses can reach an agreement. Still, there are times when a Fort Collins divorce attorney may recommend that a divorcing client not attend a mediation session with their spouse, including for one or more of the examples below:

• In domestic violence situations: spouses who’ve lived with a pattern of domestic violence in the marriage have an imbalance of power in their relationship. One spouse may not be willing or able to stand up to the other after years of intimidation. In violent situations, exposing an abuse victim to their angry abuser isn’t appropriate or safe for anyone involved.
• If one spouse has committed child abuse and the other parent cannot and should not compromise on a child custody dispute.
• In high-conflict divorces: when spouses have become adversarial to the point of hostility, mediation may not be appropriate. Divorcing spouses with a high level of contention and anger toward each other cannot communicate or compromise. Mediation between spouses with this level of conflict only results in sparring matches and an opportunity for hostility and further contention rather than a resolution.
• One or both spouses lack transparency: If a spouse has hidden assets, the mediation session isn’t fair and prevents a balanced division of marital assets. Mediation only works when both spouses have made full financial disclosures.
• High-asset or complex financial divorces: spouses with high assets or diverse financial portfolios and business interests may need a divorce forensic analysis and financial advisors as well as their family law attorneys in Fort Collins rather than relying on a professional mediator.

Advice from a professional mediator does not help resolve disputes between uncommunicative spouses who are not open to reasonable negotiation.

What Are the Options If We Don’t Attend Mediation?

Most spouses who don’t attend mediation because it isn’t appropriate for their circumstances go to court for a litigated divorce where each side presents their arguments and evidence to the judge. Another alternative is for spouses to attend arbitration rather than litigation. This helps to keep their divorce private, since a divorce trial becomes public record, while arbitration remains private. Arbitration is much like a divorce trial, often with a professional arbitrator—often an ex-judge or highly experienced divorce attorney—presiding. Both spouses must agree to abide by the arbitrator’s decisions.