Nolo's Essential Guide to Divorce - Emily Doskow [40]
• Drug or alcohol abuse. The reasons for this should be obvious. Someone who has an addiction problem should be in some kind of recovery program before you consider mediating.
Some people think that mediation won't work unless divorcing spouses get along well. But you don't have to like or even completely trust your spouse in order to mediate successfully-you only need to be confident that your spouse will show up and make a real effort to settle. If you're not sure, give your spouse the benefit of the doubt and try it. But if you are somewhat mistrustful, make sure you have a consulting attorney-a lawyer of your own who can advise you about your best interests throughout the mediation process. (See "Choosing and Working With a Lawyer," below.) And if one of you blames the other for the divorce and is still very angry, you may need a coolingoff period before you start mediation.
Your chances of success in mediation are enhanced if:
• Neither you nor your spouse is interested in reconciliation. If either of you still wants to try staying married, you'd be better off going to marriage counseling first. Mediation isn't about making the marriage work-it's about making the divorce work.
• You both consider it a priority to maintain good relations with each other. You might feel this way for the sake of your children, or because you want to honor the relationship you had and the history you share.
• You both disclose everything about your finances. Most mediators will ask you to disclose financial information to your spouse voluntarily, as part of the mediation. If one person is withholding information-and particularly if you suspect that your spouse might he hiding assets (see Chapters 5 and 9 for more about this), you can still consider mediating. But you'll want to have your own attorney who can help you make sure you are getting all the information to which you're entitled.
If You've Been the Victim of Domestic Violence
Many mediators and battered women's advocates feel that mediation can't work when there's a major power imbalance between the parties, as is true where one party is a batterer and the other a victim. But others believe that the mediation process itself can be empowering for people who are leaving abusive relationships, and can provide an opportunity for them to stand up for themselves in a way they weren't always able to during the marriage.
If your relationship has involved physical violence and you want to try mediation, consider using a court-sponsored mediation program rather than a private mediator. (There's more about these programs in "CourtConnected Mediation," below.) It will cost less, and the mediators in court programs are generally experienced in dealing with domestic violence issues and will ensure that you and your spouse have separate sessions with the mediator, rather than together. If you do use a private mediator, ask that mediator to meet with you separately.
Suggesting Mediation to Your Spouse
What should you do if you are interested in mediation but you think your spouse won't be, or might reject the idea just because it comes from you? How you raise the issue may make all the difference, so plan your approach carefully.
If you and your spouse have lawyers, start with them. Virtually all family law attorneys are familiar with mediation. Assuming your lawyer is solidly pro-mediation, ask your lawyer to propose it to the other lawyer. That way your spouse's own lawyer will he the one bringing it up to your spouse.
If you're working directly with your spouse to get the divorce process going, then you'll have to figure out the best time to raise the subject. You surely know by now that both of you are on an emotional rollercoaster, and that some days are much, much better than others. Not only do you need to assess your spouse's mood and feelings before going ahead with the discussion, but also your own. Are you able to calmly give your reasons for wanting