The subject of this article is a little unusual coming from a mediator, but I’m here to be honest. Mediation is not always the answer. As much as I would like to think so and try my best to get the optimal outcome for both parties, it does not always work. Recently I had a client who came to me for mediation after being separated for ten years. I thought this case was a shoe-in because they had been apart for so long and figured that emotions would not be as involved as a couple who was recently separated.
That was not the case for this couple. Years of anger and resentment came to the table in such a way that our sessions often ended explosively, with someone walking out. After a month of back and forth, I said to this couple that I didn’t think mediation was the right fit for them. As much as I tried, I could not get them to agree on practically anything.
One of the foundational principles of mediation is that both parties must be on equal footing, with an ability to engage in open and honest communication. This becomes nearly impossible when there is a significant power imbalance. For instance, consider a situation where one spouse has always controlled the family’s finances, while the other has little to no knowledge of their assets and debts. In such cases, the financially dominant spouse may use their advantage to manipulate the outcomes, whether intentionally or not. A wife who stayed home for twenty years to raise children may not feel confident enough to challenge her husband’s claims about the value of their business or retirement accounts. A lawyer can step in to ensure transparency and advocate for her fair share, something mediation alone may not achieve.
Even more troubling are cases involving abuse. While mediation is often praised for its ability to de-escalate conflict, it is not equipped to handle situations where abuse—physical, emotional, or financial—has shaped the relationship. Imagine a woman who has endured years of verbal degradation now being asked to sit across from her abuser in a mediation session. The fear and anxiety stemming from past trauma can silence her, rendering her unable to advocate for herself. Similarly, a husband who faced financial abuse might feel pressured into agreeing to terms just to avoid further confrontation. For such individuals, seeking the assistance of a lawyer is not just to ensure a fair outcome, but also to provide a sense of security and empowerment.
Communication challenges extend beyond cases of abuse. High-conflict divorces, where even the smallest issues spiral into arguments, are also poor candidates for mediation. Take for example a couple who cannot agree on basic parenting schedules. Every discussion turns into a shouting match, with accusations flying back and forth and no resolution in sight. In such scenarios, mediation can devolve into chaos, wasting time and resources. In this case, a lawyer can act as a buffer, representing one party’s interests without the need for direct, unproductive confrontation.
Complex financial situations present another significant challenge for mediation. Consider a couple who co-own a thriving business with intertwined personal and professional finances. Determining how to divide the assets equitably can require extensive legal expertise that goes beyond the scope of mediation. Similarly, custody disputes involving children with special needs can introduce layers of complexity that require legal intervention. For example, deciding who will manage the child’s healthcare or educational decisions, and how to allocate the associated costs often demands the precision and structure that only a court or experienced lawyers can provide.
In some cases, the issue isn’t conflict or complexity, but a lack of willingness to participate. Mediation is a voluntary process, and its success depends on both parties being willing to engage. If one spouse refuses to respond to requests for mediation sessions or deliberately stalls the process, the other is left in limbo. Take the case of a husband who refuses to sign necessary financial disclosures, preventing any meaningful discussion to take place in mediation. In such cases, turning to legal counsel ensures that the process can move forward, with deadlines and court oversight providing accountability.
Despite these challenges, it’s important to note that mediation and legal counsel can work hand in hand. For instance, a couple can use mediation to resolve parenting schedules and basic property division, but rely on lawyers to draft the final agreement or address more contentious issues. This hybrid approach can offer the best of both worlds: the collaborative spirit of mediation and the protective safeguards of legal representation.
Ultimately, choosing the right path during a divorce requires an honest assessment of the couple’s unique circumstances. Mediation works best when both parties are committed to finding common ground, but it’s not a one-size-fits-all solution. Recognizing when a situation calls for legal counsel can save time, reduce stress, and protect the interests of everyone involved.
For couples facing challenges, whether due to abuse, conflict, or financial complexity, seeking legal representation is often the wisest course of action. Divorce is a deeply personal journey, and the route to resolution should be tailored to the needs of the individuals involved. By understanding the limits of mediation and the value of legal counsel, couples can take the first step toward a fair and just resolution for all.
Tamara Gestetner is a certified divorce mediator and psychotherapist located in Cedarhurst. She works with couples in need of mediation as well as couples in need of counseling. Tamara can be reached at tamaragestetner@gmail.com or 646-239-5686. For a free guide to dealing with the intricacies of divorce, please scan the attached QR code. To learn more about Tamara, please visit her website at www.tamaragestetner.com.
