The Truth About Divorce Mediation: What You Need to Know

Concerns about attorney costs naturally lead many people to ask: should I just use a mediator for my divorce? It's a fair question, and mediation may well be the right path. Here's what you need to know about selecting the right mediator, mediation limitations, and when it works.

The Choice of Mediator

If you are only using a mediator, your choice of mediator is key because the wrong one can undermine the entire process. Be wary of any mediator who discourages you from consulting with or bringing an attorney to mediation sessions. This does not mean you must use an attorney, but a good mediator views attorneys as valuable partners who ensure clients make informed decisions. A mediator who sees lawyers as obstacles may not be as knowledge or informed. 

We have heard of mediators telling clients, “attorneys add conflict," "lawyers are too expensive," or "we can reach better agreements without attorneys." Some position themselves as more informed than attorneys, claiming their background gives them specialized knowledge. We have seen this attitude particularly with some, "certified divorce" financial planners or lenders, acting as mediators. To be clear, certified divorce financial planners and lenders can add significant value to the mediation process. The problem arises when they overstep their expertise and discourage couples from consulting or using attorneys or other professionals in the process. We recommend extreme caution in these situations because we've reviewed countless mediated agreements with provisions not in the client's best interest, unenforceable terms, or agreements that are simply unfair and cannot be changed.

We recommend mediators with extensive family law litigation experience because they offer more insights. We consistently see more robust and balanced agreements. We recommend asking if the proposed mediator has litigated family law cases. Many non-lawyer family law mediators receive their information second-hand from stories told by other lawyers or from conferences they've attended, which is not the same has having that litigation experience.

If you're considering using only mediation, we recommend choosing a mediator with significant family law litigation experience. In our experience, litigation is the only way to really understand what is going on in family law and this cannot be gleaned without that courtroom experience.

Mediation Limitations

Beyond selecting the right mediator, understand mediation's limitations is important. Mediators cannot force agreements. If one spouse is uncooperative or unwilling to compromise, mediation becomes unproductive and you've wasted time and money. Unlike a judge, a mediator has no authority to resolve disputes without consensus.

Mediation can also produce unequal agreements when there is a power imbalance. If one spouse is more financially sophisticated or assertive, they can dominate the process. We have seen spouses agree to unfair terms simply to avoid conflict or because they trust the mediator's assurance that "this is fair." Without independent legal advice, they may sign away retirement rights, accept inadequate or excessive maintenance agreements. By the time they realize the problem, it's often too late or expensive to fix.

Mediation doesn't protect you from future claims of inadequate disclosure if mandatory financial disclosures aren't properly exchanged according to legal requirements. We've seen too many cases where couples skip proper disclosures and end up back in court within a few years trying to reargue their property settlement because this critical step was missed

When Mediation Works

That said, when done right with a qualified mediator and proper legal guidance, mediation keeps couples focused on problem-solving rather than point-scoring. It creates space for compromise and often produces customized agreements that work for your family's unique circumstances. Both spouses can feel heard and retain control over their future. We are a fan of mediation and good mediators.

This article was written by Laurie Schmidt. Ms. Schmidt is the managing attorney of 5280 Law Group, P.C. Her practice is comprised of family law and criminal defense matters. She can be reached at (303) 747-4686 or email: admin@5280lawgroup.com.