Mediation for Family Law Disputes—Is It a Cure-All, a Band-Aid Precursor to Litigation, or Something in Between?

Alan R. Feigenbaum

If during the ongoing COVID-19 pandemic you, and/or your spouse, have made the decision to part ways, then there’s a good chance you have considered or read about mediation as a potential way forward. Mediation, including online mediation, is seemingly all the buzz right now. It has become an integral part of the judicial systems in California, Florida, New Jersey, Pennsylvania, and New York.

Think before you act. All else being equal—if you were asked whether you prefer to “mediate” or “litigate,” you probably would choose the former. What you should consider, carefully, is whether or not your family dynamic and your relationship with your soon-to-be ex-spouse is suitable for mediation.

What are the factors to consider when you make your decision? What due diligence should you undertake before saying “yes” or “no” to mediation? Cost is an obvious factor, but let’s dig deeper. Start by asking a simple question: how did your spouse treat you during the marriage—emotionally, financially, as a parent, as a partner? If the answer to all of these categories is resoundingly awful, then think twice about mediation. It may be emotionally taxing to dredge up what has played out during your marriage when you make this calculus, but the alternative is to dive right into the process, cold.

It is often said that “information is power.” In a decision as important as this, you want to arm yourself by considering all the angles. It is up to you how long you want to mediate your financial and/or child custody dispute. Mediation can end in several ways: abruptly, after only a couple of sessions; after multiple attempts/sessions; or successfully at the conclusion of your dispute. If your goal is to see mediation to its conclusion then it behooves you to assess whether or not the chances for success are there in the first place. Does your spouse share this goal? If throughout your marriage your spouse has treated you like an unequal partner, you should be asking yourself why that would change in mediation. Perhaps it would, but history has a way of repeating itself.

When we play the lottery, we hear that catch phrase “hey, you never know.” Whether you can apply that same thinking to mediation for financial and/or child custody disputes depends upon your end goal. If you are committed to proceeding with mediation and not finding yourself in court, then you should invest enough time to make an informed decision before you pull the trigger. Talk to your matrimonial lawyer. Find out if your expectations for mediation are realistic or not based on your family history. Become educated about the process.

Choosing not to mediate does not automatically mean you will be off to court. Attorney-negotiated settlements are certainly an alternative. That is not to say that mediated agreements are the same as attorney negotiated settlements—they are not. The point here is that step one in this decision matrix is to analyze if mediation is right for you at all. It may well be, and there are many upstanding mediators to choose from. But there is no one-size-fits-all approach to resolving financial and/or child custody disputes, and so you should not feel that you are being a contrarian simply because you want to think it through before taking the step to mediate. No one knows your spouse, and his or her willingness to cooperate (or not), better than you.