Does Mediation Work Better for Some Types of Divorces?

Mediation has the best chance of success when the divorce is uncontested or both parties are genuinely committed to working amicably toward an agreement on outstanding issues.

By Katherine Miller Updated: July 14, 2021Categories: Divorce Process, Legal Issues

Does mediation work for certain types of divorce? It certainly does. The mediation process is almost always less aggressive, less expensive, and faster than a traditional divorce. Many couples appreciate that it’s also fully confidential – your settlement won’t show up in the public record – and that they have much more control over the process and outcome.

But mediation isn’t right for every type of divorce. Is it right for you? Take a look at the three common divorce options discussed below, and consider whether mediation would have a fair chance of success in your case, or if it would simply drain your time and energy.

Does Mediation Work, or Should I Consider Other Divorce Options?

Uncontested Divorce

An uncontested divorce occurs when both parties agree to end the marriage, agree to the grounds for divorce, and have settled almost all of the divorce-related issues, such as child custody, division of property, and alimony. Uncontested divorces may be based on fault grounds or non-fault.

Mediation can be an ideal solution for a couple that seeks an uncontested divorce but still have minor ancillary issues to work out. For example, if the couple has agreed on all divorce terms but can’t quite reach full agreement on child custody issues, the mediator would help them work toward a consensus. In this situation, mediation is likely to work because both parties agree to the divorce and are predisposed to working together to reach an agreement on all issues as harmoniously as possible.

No-Fault Divorce

A no-fault divorce is one where at least one party claims that the marriage has “broken down irretrievably” for at least six months, but does not assign any particular blame to the other party. This type of divorce may be either contested or uncontested.

An uncontested no-fault divorce means that the couple agrees to the divorce and agrees on major ancillary issues. Mediation would be a good option in this case because the parties can work reasonably well together and only have minor issues to resolve.

In a contested no-fault divorce, however, mediation may only be a good option under specific circumstances. Contested no-fault divorces are those where one person believes the marriage has broken down irretrievably, but there is a significant dispute as to either the grounds for the divorce or issues such as child custody, alimony, or property division. In this situation, we would only advise mediation if both parties are willing to commit to working amicably with a mediator to reach a resolution. One party wanting mediation isn’t enough.

Fault Divorce

In New York, there are six grounds for divorce apart from irretrievable breakdown. These grounds include cruel and inhuman treatment, abandonment, imprisonment, adultery, legal separation of one year, or where the parties have received a judgment of legal separation.

Mediation has the best chance of success when the divorce is uncontested or both parties are genuinely committed to working amicably toward an agreement on outstanding issues. Thus, it is possible to use this approach in a fault divorce, but only if the couple is fair-minded enough and their relationship is cordial enough to talk out a resolution. The parties must realistically examine their ability to put aside past hurts, any desire to punish the other person, and their ability to be just before agreeing to pursue mediation.

So, does mediation work? It does, but in some circumstances, mediation is never advisable. If a person is seeking a divorce on grounds of cruel and inhumane treatment or has suffered abuse at the hands of their spouse, mediation is unlikely to be successful. Worse, it may even put the person seeking the divorce in harm’s way. In such cases, it is better to take the route of traditional litigation where the parties do not have to work together and can communicate exclusively through their lawyers.