A divorce can 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 overwhelming, especially when the principals are barely speaking to each other. In the worst-case scenario, separating 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.
Divorce mediation would seem to offer a more peaceful alternative to traditional adversarial divorce negotiations. And, indeed, by drawing on proven mediation strategies, divorce mediation has been found to achieve higher settlement rates than litigation. We examine the effectiveness of divorce mediation and how it and related processes can make divorce less difficult.
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A Closer Look at Divorce Mediation
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 2012 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% of participants were helped by a lawyer. As compared with participants who engaged in litigation, participants who engaged in divorce mediation reported reaching higher-quality agreements, as measured by how tailored, fair, comprehensive, and clear those agreements were. Notably, the results of Baitar and his colleagues’ study need to be qualified by the fact that the participants themselves chose whether to mediate or litigate. It could be that those who chose divorce mediation entered into the process 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.
Divorce Mediation and Collaborative Law
More and more in recent years, divorcing couples have been turning to a hybrid process known as collaborative law, which combines a lawyer’s advocacy and legal know-how with the problem-solving orientation of divorce mediation. The process begins when each disputant hires a collaborative lawyer who will negotiate, not litigate. The parties sign a disqualification agreement stating that they will hire a different lawyer if they decide to instead litigate their dispute—an agreement designed to commit disputants to the negotiation process, as well as reducing lawyers’ financial incentives to pursue a lengthy litigation process.
In addition, disputants agree in advance to disclose all information relevant to the case, to treat each other with respect, to jointly hire experts (such as psychologists in child-custody cases), and to address each other’s needs. In turn, their lawyers promise to serve as negotiators, not litigators, and to try to keep the process honest, respectful, and productive. Working together, the clients and their lawyers engage in a series of meetings aimed at finding creative solutions that meet both parties’ interests.
By combining divorce mediation with negotiation, collaborative law increases the facilitative nature of divorce negotiations in a traditionally competitive realm. It also eliminates the conflict of interest faced by lawyers who could gain more financially from a long litigation process than from a quick settlement.
Whether individuals choose divorce mediation, facilitative negotiation, or collaborative law, they are likely to reduce the acrimony that’s often linked to divorce and improve their odds of reaching a mutually beneficial resolution. Overall, those preparing to divorce would be wise to seek out professionals—mediators or lawyers—who believe that mediation strategies and techniques aimed at encouraging an open dialogue are more likely to promote a satisfactory divorce than a straightforward competitive approach would.
What strategies have you found to be useful in divorce mediation and negotiation?