Can you refuse mediation in a divorce? – Solent Family Mediation


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The Four Divorce Alternatives

Divorce mediation

No two marriages are the same, and so it just follows that no two divorces will be the same, either.

If you’re a female who’s considering divorce, you have several options about how to continue. In general terms, you require to consider 4 broad categories of divorce alternatives: Do-It-Yourself (DIY), Mediation, Collaborative and Lawsuits. Let’s take a look at the benefits and drawbacks of every one.

Do-It-Yourself Divorce

The very best suggestions I can provide you about Do-It-Yourself Divorce, is DON’T Do-It-Yourself!

Divorce is extremely made complex, both legally and economically. You can easily make errors, and typically those mistakes are permanent. The only scenario I can picture when a Diy divorce might make any possible sense, might be in a case where the marriage lasted only two or 3 years and there are no kids, little or no assets/debts to be divided, comparable incomes and no spousal support. In a case like that, a Do-It-Yourself divorce could be accomplished rather quickly and cheaply. I would still extremely advise that each party have their own separate lawyer review the last files.


In divorce mediation, a separating couple deals with a neutral arbitrator who helps both celebrations pertain to an arrangement on all elements of their divorce. The mediator may or may not be an attorney, however he/she must be incredibly skilled in divorce and family law. In addition, it is critical for the arbitrator to be neutral and not promote for either party. Both parties still need to consult with their own, individual lawyers throughout the mediation and prior to signing the last divorce settlement arrangement.

Here are a couple of advantages and disadvantages to consider prior to deciding if mediation will work for you.

On the “professional” side, divorce mediation might:

  • Result in a much better long-lasting relationship with your ex-husband considering that you will not “fight” in court.
  • Be easier on kids because the divorce proceedings might be more serene.
  • Speed up an arrangement.
  • Reduce costs.
  • Assist you remain in control of your divorce due to the fact that you are making the decisions (and the court isn’t).
  • Permit more discretion. Mediation is private; litigated divorce is public.

On the “con” side, divorce mediation might:

  • Waste time and money. If negotiations fail, you’ll require to begin all over.
  • Be incomplete or unduly favorable to one spouse. If the arbitrator is unskilled or biased towards your hubby, the outcome could be undesirable for you.
  • Result in an unenforceable arrangement. A mediation arrangement that’s uneven or badly drafted can be challenged.
  • Cause legal complications. Any issue of law will still require to be ruled upon by the court.
  • Fail to reveal particular properties. Because all financial info is willingly divulged and there is no subpoena of records, your hubby might potentially conceal assets/income.
  • Reinforce unhealthy habits patterns. If one partner is dominating and the other is submissive, the last settlement might not be reasonable.
  • Fuel emotions. Mediation could increase negative behavior of a spouse with a propensity for physical/mental or drugs/alcohol abuse.

Couples often become aware of the marvels of mediation and how it is reportedly a much better, less contentious, cheaper and more “dignified” method to get a divorce. However, my greatest issue with mediation is that the sole role and goal of the mediator is to get the celebrations to come to an arrangement– any arrangement! Keep in mind, the arbitrator can not give any recommendations. All they can do is try to get you to concur. Not all arrangements are good arrangements, and in fact, in many cases, no agreement is better than a bad contract. So unless both celebrations can be relatively sensible and friendly (and if they can be, why are they getting separated???), I believe that mediation is usually not a viable choice for a lot of ladies.

Collaborative Divorce

Basically, collaborative divorce takes place when a couple accepts exercise a divorce settlement without litigating.

Throughout a collective divorce both you and your partner will each work with a lawyer who has been trained in the collective divorce process. The function of the lawyers in a collective divorce is rather various than in a traditional divorce.

In the collaborative process, you, your spouse and your particular lawyers all should sign a contract that requires that both attorneys withdraw from the case if a settlement is not reached and/or if litigation is threatened. If this takes place, both you and your husband should start all over once again and discover brand-new attorneys. Neither celebration can utilize the very same attorneys once again!

Even if the collective process is successful, you will typically have to appear in family court so a judge can sign the agreement. However the legal process can be much quicker and less expensive than conventional lawsuits if the collective procedure works.

However, I have actually found that the collective approach frequently does not work well to settle divorces involving complicated financial circumstances or when there are significant assets. In collective divorce, just as in mediation, all monetary information (earnings, properties and liabilities) is revealed voluntarily. What’s more, lots of high net worth divorces include organizations and professional practices where it is fairly simple to conceal assets and income.

So … as a general rule, my recommendation is this:

Do NOT utilize any of these very first 3 alternatives– Do-It-Yourself Divorce, Mediation or Collaborative Divorce– if:

  • You presume your hubby is concealing assets/income.
  • Your spouse is domineering, and you have trouble speaking out or you’re afraid to voice your viewpoints.
  • There is a history or danger of domestic violence (physical and/or psychological) towards you and/or your children.
  • You or your other half has a drug/alcohol addiction.

Litigated Divorce

The fourth divorce option is the most common. Nowadays, most of separating couples choose the “traditional” design of litigated divorce.

Keep in mind, however, “prosecuted” does not indicate the divorce ends up in court. The large majority of all divorce cases (more than 95 percent) reach an out-of-court settlement arrangement. “Lawsuits” is a legal term meaning ‘performing a suit.’

In 80 percent of cases, the decision to divorce is unilateral– one party wants the divorce and the other does not. That, by its very nature, creates an adversarial scenario right from the start and typically disqualifies mediation and collective divorce, given that both techniques rely on the complete cooperation of both celebrations and the voluntary disclosure of all financial information.

Clearly, if you are beginning with an adversarial and extremely mentally charged situation, the opportunities are extremely high that collaboration or mediation might stop working. Why take the risk of going those paths when chances are they might fail, losing your money and time?

The most important and most tough parts of any divorce are coming to a contract on kid custody, division of properties and liabilities and alimony payments (how much and for for how long). You desire your lawyer to be a highly proficient mediator, you don’t want somebody who is excessively combative, ready to battle over anything and whatever. An overly controversial technique will not just extend the discomfort and significantly increase your legal fees, it will also be mentally detrimental to everybody included, especially the kids.

Remember: Many divorce attorneys (or a minimum of the ones I would recommend) will always make every effort to come to an affordable settlement with the other party. However if they can’t pertain to a reasonable settlement or if the other celebration is entirely unreasonable then, sadly, going to court, or threatening to do so, might be the only method to resolve these issues.

If you have tried everything else, and you do wind up in court, things can get actually nasty and hostile. Up till that point both lawyers were “negotiators,” attempting to get the parties to compromise and concern some reasonable resolution. Once in court, the function of each lawyer changes. Negotiations and compromise transfer to the back burner. Their brand-new task is to “win” and get the best possible result for their client.

And don’t forget, once you remain in court, it’s a judge who understands very little about you and your family that will make the final decisions about your children, your residential or commercial property, your money and how you live your life. That’s a huge danger for both celebrations to take– and that’s also why the risk of litigating is normally such a good deterrent.

Here’s my last word of guidance about divorce options: Weigh divorce choices carefully. If you have doubts, it is good to be prepared with “Plan B” which would be the prosecuted divorce.

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