Don’t divorce lawyers make mediation harder and more expensive? I’m a divorce lawyer, and I’ll be the first to admit it: sometimes lawyers can do more harm than good in the mediation process. Sometimes.
If most people could simply sit down in mediation and work out the complexities of a divorce, they wouldn’t need mediators. Why? Because they’d be so well informed about the legal intricacies and the benefits of a negotiated settlement. Few such people exist. There is a reason most people bring their lawyers to mediation, and it’s not to make mediation more difficult, unfair, or less likely to succeed. Quite the opposite.
I’m not only a divorce lawyer, I am also a divorce mediator. The longer I practice the more opposed I am to mandatory mediation. The reason? Only when both spouses honestly believe a settlement might be reached in mediation should they go to mediation and try. But I have yet to meet a mediator who won’t take the money of two extremely acrimonious spouses and waste hours on a session that’s going nowhere (sure, some mediators will “call it” after several hours, but only after they’ve made their nut).
When a divorce lawyer is not only warranted, but usually needed in divorce mediation? Some people file for divorce because their spouses are snakes in the grass. The only language they speak and hear is power and control. Other spouses are plum crazy and irrational. These types make a mockery of settlement and settlement negotiations. It’s foolish to force one to “mediate” with another who isn’t participating in good faith. It’s because of people like this that a spouse will bring a lawyer with him/her to mediation (and for good reason–to advise and to protect his/her client).
When mediators are excessively self-congratulatory and exaggerate the “power” of mediation, they do mediation and mediation clients a disservice. They mislead people into believing that with enough “safe space,” “clarifying,” “brainstorming alternatives,” and (my favorite) “empathy” that every case will all but settle itself.
If all that were needed is “providing a safe space and an opportunity to clarify respective points of view” and “resolving impasses by offering multiple suggestions of what others have chosen in similar situations,” and “managing people in an emotionally charged situation,” we wouldn’t have so many litigated divorces.
So how can a divorcing couple that works together as well as oil and water or nuts and gum mix—but who still both want to avoid costly and emotionally exhausting litigation—make mediation truly productive and efficient? The answer is to strip away the illusions and use mediation for what it actually does best: narrowing disputes, identifying realistic settlement ranges, and testing whether either spouse is truly willing to compromise. That requires structure, not “kumbaya” circles. Each spouse needs to come prepared—financial disclosures in order, parenting proposals written out, a clear list of what matters most versus what can be traded. Lawyers, if present, need to keep their advocacy in check and focus on problem-solving, not posturing. A competent mediator should be unafraid to call out stonewalling, reality-test each side’s expectations, and end the session if one or both parties are wasting time.
Mediation isn’t magic, and it won’t cure a toxic dynamic. But it can be a controlled environment where even hostile parties hammer out parts of a settlement—or at least discover what issues truly require a judge’s ruling. In that sense, a “failed” mediation is not a failure at all if it clarifies what’s really in dispute and saves the court from slogging through the rest.
When Mediation Works vs. When It Doesn’t
When it works:
- Both spouses see the value in compromise. When both spouses—even grudgingly—believe settlement is better than a courtroom slugfest.
- The issues are mostly about money, parenting schedules, or property division—not raw emotion, spite, mental illness, and/or personality disorders. Dollars and days on a calendar can be split. Character assassination and control games can’t.
- Preparation is done up front. Full financial disclosures, parenting proposals, and realistic expectations are brought to the table before the first minute of mediation starts. Everyone—and that includes the mediator—knows what the issues are, knows each party’s position as to each, and is prepared to answer substantive questions as the mediation unfolds to help the parties gain a better understanding of the issues and how to resolve them fairly.
- The mediator has backbone. A good mediator won’t just “hold space”; he/she will reality-check each side, call out stonewalling, and push the conversation toward resolution. The mediator will not twist arms but will take responsibility for managing the mediation session productively.
When it doesn’t:
- One spouse uses mediation as a delay tactic. If someone’s stalling discovery or other progress in the case, avoiding support payments, or trying to wear the other down financially, mediation becomes a weapon, not a tool for settlement.
- One spouse has no intention of settling. If the goal is to dominate, punish, or waste your time and money, no amount of “safe space” will change that.
- There’s a serious imbalance of power or information. Mediation can’t fix hiding assets, manipulation, or intimidation. In those cases, a judge’s authority may be the only equalizer.
- The parties confuse venting with negotiating. Mediation is not therapy. It’s about terms, not feelings, not justification.
Mediation works best when both spouses want it to work, and by “work,” that means mediation promotes a fair compromise. Forcing people who refuse to negotiate into a “mandatory” process rarely produces anything but more resentment and more legal fees.
How to Approach Mediation if You’re on the Fence
If you’re considering mediation but aren’t sure it’s worth your time, here’s how to approach it without wasting money or negotiating against yourself:
- Get your paperwork in order. Don’t show up empty-handed. Have your financial disclosures and a written list of your priorities ready. You can’t negotiate what you can’t define.
- Set your non-negotiables and your flex points. Know what you must have, what you’re willing to bend on, and what you can trade to get what matters most.
- Decide whether to bring your lawyer. If your spouse is aggressive, evasive, or just more sophisticated, don’t go it alone. A good lawyer can help you avoid agreeing to something you’ll regret and can even facilitate agreement where there seemed to be no hope of agreement.
- Treat mediation as a test. Go in willing to make a good-faith effort, but don’t confuse effort with obligation. If it’s clear after an hour or two (or less, if it’s that obvious) that settlement isn’t possible, cut your losses.
- Measure success realistically. A mediation that resolves even part of your case—i.e., settles some but not all issues—still saves you money and stress in court.
Mediation isn’t a magic wand. It’s a tool. Used wisely, it can shorten the battles and lower the bills. Used blindly, it can waste time and hand power to the wrong person. The trick is knowing the difference and preparing accordingly before the mediation session starts.
Utah Family Law, LC | divorceutah.com | 801-466-9277