When is Divorce Mediation Not Recommended?

Divorce mediation is a potential solution for troubled divorces. Couples come together under the guidance of an impartial third party and collaborate on solutions. 

Some discuss estate distribution, ensuring both parties get an equitable share. Other couples discuss parenting plans and child support. Still, others work out spousal support agreements. 

While divorce mediation can be helpful for many couples, some shouldn't use this method to end their marriages. 

Five situations better solved in court 

Mediation works best when two equals agree to find fair solutions to difficult problems. While you might wish your divorce fit this model, some just don't. These are five situations that could make mediation a bad idea for you: 

1. Your spouse is dishonest 

About a third of couples have experienced so-called "financial infidelity." One partner made (or spent) more than the other was aware of. In time, people can become so accustomed to the deception that they can't break the habit and may keep lying throughout the mediation.

Equitable solutions require honesty. Both parties must know what they have and what they owe so they can divide the estate evenly. If your spouse won't provide a clear and honest account of their finances, you can't solve this problem in mediation. It's best to work with a lawyer (and perhaps a forensic accountant) to understand your estate. 

2. Your relationship involved violence 

About 20 people per minute are physically abused by an intimate partner in America. If your marriage was marred by kicks, slaps, pinches, or other forms of physical abuse, participating in divorce mediation could be dangerous. 

Mediators are trained professionals, capable of helping their clients to collaborate and get along. But some people are unpredictable, and during a difficult conversation, they could respond with violence. 

A courtroom could be a safer place to split from an abusive partner. You'll be protected by bailiffs and other members of the judicial system, and your spouse could face swift retribution for attacking you in court. 

3. Your spouse is too powerful 

Within the context of a relationship, power refers to one person's ability to direct or influence the other person's behavior. You don't need to be meek or submissive to be part of a marriage with a power imbalance. But you might find yourself unable to make clear decisions without your partner's input, and you might be afraid to disappoint that person. 

Mediation should allow both parties to feel powerful and in charge of the outcome. A deep imbalance could keep you from advocating for your position and getting what you want. 

If you know you can't speak up with your spouse in the same room, a court case where a lawyer would argue on your behalf could be better. 

4. You're unwilling to negotiate 

Mediation is a compressed form of negotiation. Both parties must agree to work together on solutions that benefit both of them. Sometimes, couples just aren't ready for a talk involving give and take. 

Think hard about what you'd like from the mediation. If you're focused on revenge, you could harm yourself during the mediation. For example, your anger could force you to advocate for a bigger share of the estate, and you might not be able to pay the taxes on your new properties. 

There's no shame in admitting that you're not ready to collaborate. Your lawyer can handle this step for you during a court case. 

5. One party doesn't want to divorce 

One partner typically initiates the divorce process. When the divorce papers arrive, the other party may be determined to mend rifts and fix the marriage. You can't solve this problem in mediation. If you want a divorce and your partner does not, you can't find middle ground. 

If your partner refuses to participate in dividing your estate and ending the marriage, it's best to go to court. Mediation could waste your time. 

What happens next?

If mediation isn't right for you, heading to court probably is. Find a lawyer you trust, and work together to build a case that protects your future, finances, and family. When you find a partner you trust, this process becomes easier. 

Going to court is more expensive and time-consuming than mediation, but in some cases, it's the best way to move forward.

Watch: Your Top Divorce Mediation Questions, Answered by Erin Levine



Survey: 30% Have Dealt with Financial Infidelity. (January 2022). U.S. News and World Report. 
National Statistics. National Domestic Violence Hotline. 
The Signs of Unhealthy Power Dynamics in a Relationship and How to Even Them Out. (February 2022). Big Think. 
Win Your Divorce by Staying Out of Court. (April 2021). Forbes.