Mediation: Negotiating a More Satisfactory Divorce

Mediation offers a more peaceful alternative to traditional divorce negotiations and has been found to achieve higher settlement rates than litigation.

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Mediation: Negotiating a More Satisfactory Divorce

We’ve all heard nightmarish stories of divorce battles that take years—and cost a small fortune—to resolve. The task of negotiating child and spousal support, dividing property and other possessions, and establishing child-custody arrangements can be daunting, especially when the principals are barely speaking to each other. In the worst-case scenario, bitter spouses hire cutthroat lawyers to make rigid (and sometimes outrageous) demands, the two sides dig in, a judge takes over, and animosity reaches a fever pitch. Mediation would seem to offer a more peaceful alternative to the traditional adversarial approach to divorce negotiations. And, indeed, mediated divorces, now widespread, have been found to achieve higher settlement rates than litigation.


Download this FREE special report, Mediation Secrets for Better Business Negotiations: Top Techniques from Mediation Training Experts, to discover mediation techniques for selecting the right mediator, understand the mediation process and learn how to engage the mediator to ensure a good outcome from the Program on Negotiation at Harvard Law School.


How does the quality of divorce agreements facilitated by mediators compare with that of agreements obtained through lawyers?

Researcher Rachid Baitar of the Catholic University of Leuven and Ghent University in Belgium and his colleagues examined this question in a new study of 469 divorcing individuals in Belgium.

About half of the participants reported experiencing a high level of conflict with their spouse before the divorce; for others, conflict was less intense or minimal.

In the study, a mediator assisted 30% of participants in reaching agreement; the other 70% were helped by a lawyer.

As compared with those engaged in litigation, participants who engaged in mediation reported that they reached higher quality agreements, as measured by how tailored, fair, comprehensive, and clear the agreement was.

Notably, these results need to be qualified by the fact that participants themselves chose whether to mediate or litigate. It could be that those who chose mediation entered with a less combative attitude than those who chose litigation, a difference that would weaken the study’s results.

In addition to looking at whether the divorces were mediated or litigated, the researchers examined the negotiating style of the mediators and lawyers involved. In a facilitative mediation, the mediator focuses on helping parties carry out a smooth, open conversation; in an evaluative mediation, the mediator may also evaluate parties’ positions and even propose a settlement. Many divorce attorneys have begun to adopt a more facilitative approach—for example, by trying to de-escalate conflict and improve the quality of the relationship between the divorcing spouses.

Study participants whose mediator or lawyer took a facilitative approach to the negotiation, as measured by their tendency to engage in problem solving behaviors and help their clients focus on interests, generally reported high-quality outcomes.

Overall, the results suggest that couples would be wise to be aided by professionals who believe that reducing confl ict and encouraging an open dialogue are more likely to promote a satisfactory divorce than a straightforward competitive approach would. Indeed, perhaps seeking the best of both worlds, some divorcing couples are turning to a process known as collaborative law, which combines a lawyer’s advocacy and legal know-how with the problem-solving orientation of mediation.

The process begins when each disputant hires a collaborative lawyer who will negotiate, not litigate.

The parties agree to hire a different lawyer if they decide to instead litigate their dispute—an agreement designed to commit disputants to the negotiation process and reduce lawyers’ financial incentives to pursue a lengthy litigation process. Such a hybrid approach has the benefit of increasing the facilitative nature of divorce negotiations in traditionally competitive realms.

Resource: “Toward High-Quality Divorce Agreements: The Influence of Facilitative Professionals,” by Rachid Baitar, Ann Buysse, Ruben Brondeel, Jan de Mol, and Peter Rober. Negotiation Journal, October 2012.


Download this FREE special report, Mediation Secrets for Better Business Negotiations: Top Techniques from Mediation Training Experts, to discover mediation techniques for selecting the right mediator, understand the mediation process and learn how to engage the mediator to ensure a good outcome from the Program on Negotiation at Harvard Law School.


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