If you have been browsing divorce topics, you have likely seen countless articles urging you to consider divorce mediation or attorney-facilitated negotiation as a means of resolving your divorce out of court. Collaborative divorce is another common alternative resolution method during divorce. Collaborative divorce requires both parties to actively participate, and to do so in good faith. A mutual willingness to compromise is a necessity. Either spouse, unfortunately, has the power to delay or frustrate the process. If no agreement can be reached after substantial efforts have been made, you will be left with no option but to resort to divorce litigation. In some cases where it is abundantly clear that mediation or negotiations are likely to fail, it may be more prudent to make litigation your plan from the outset. An experienced attorney can assess your situation and help you decide whether yours is a divorce that cannot be settled out of court.
Situations Suggesting That Collaborative Divorce or Mediation May Not Succeed
No matter how willing to compromise you are, mediation efforts will generally be futile if your spouse does not share your willingness. Circumstances that may suggest that mediation and collaborative divorce may be insufficient include:
- Abuse - If your spouse has abused you or your children in any way at all, it suggests that they are not the type of person who can settle their disagreements in the rational manner demanded by collaborative divorce. Additionally, attempting to negotiate with them directly and outside a courtroom setting may provoke them or be emotionally distressing to you. It also opens the door for threats to be made to force the abused party to comply with the abuser’s demands.
- Severe mental illness - If your spouse has a severe mental illness like Borderline Personality Disorder or Bipolar Disorder, their illness may impact their ability to participate in negotiation or mediation in a productive manner. They may be more interested in placing blame on you than in reaching an agreement.
- Substance abuse - People who are almost always intoxicated are not known for their ability to keep their commitments. It can be difficult to get a person with a substance use disorder to show up for scheduled mediation sessions or to return communications promptly and use comprehensible language.
- Extreme conflict - While you certainly do not need to be amicable with your spouse to reap the benefits of collaborative divorce, you do need to be capable of communicating without fighting. If negotiating with your spouse would cause emotional distress and escalating conflict, it may be best to go to court.
These are only a few examples of circumstances that may suggest that alternative resolution methods are not right for you. You should discuss your concerns with a qualified attorney.