The Pros and Cons of Connecticut Divorce Mediation

Advantages of Divorce Mediation

• Time — You aren’t constrained by the busy court calendar. You can schedule mediation sessions on your own and move forward at your own pace. This may result in a slower process as your case is not on the Court’s radar, or you may be able to get to mediation far more quickly than you could put your case in from of the Court. Remote options are also available for conducting mediation.
• Privacy — In contrast to a trial, which takes place in a public courtroom, mediation sessions are private, involving only the spouses, their lawyers, and the neutral third party, and perhaps experts if it is agreed they might help facilitate the negotiation (such as where a main issue is the value/division of a closely held business). With few exceptions, mediation is confidential, compared to a courtroom proceeding which is a matter of public record.
• Control — Mediation is voluntary, so the parties can decide which issues they wish to discuss and resolve. You don’t have to agree to anything you consider objectionable. (On the flip side, the other side does not have to agree either.) At the end of a successful mediation, you have an agreement you have participated in crafting, rather than being involuntarily subjected to provisions imposed by a judge – which neither side may ultimately prefer.
• Lower expense — Mediation may avoid many of the costs of taking a case to trial. While private mediators also charge for their services, that may be readily offset by the greater efficiency of the mediation process, and the ability of the parties to control that scheduling compared to the vagaries and typical delays of the Court process.
• Less stress — Mediation is less adversarial and outside the formal setting of a courtroom (even a virtual one), so it encourages cooperation rather than combativeness. If you have children, you may be able to spare them the stress of being interviewed by court personnel or having to appear in court.

 

Disadvantages of Divorce Mediation

A mediator does not represent your interests, so you need to be sure you have enough technical and legal expertise on your side to make informed judgements and long-term decisions about the issues in your case including: alimony, custody, and property division;

• A mediator’s objective is settlement. As a result, individual interests are always vulnerable and subject to being compromised or “glossed over” – especially in the absence of legal representation.
• In some mediation settings, especially those without attorneys, discovery may be limited. That can be good or bad. It can keep everything simple and more straightforward, if you trust your spouse or know all the information involved already. Conversely, it can also deprive you of the complete knowledge you need to be fully informed in resolving your case. While the amount of discovery can be tailored to fit your process, particularly with the assistance of counsel, it may be helpful to go into mediation after you have a sufficient amount of additional information to settle your case.
• In the absence of a formally filed divorce action in Connecticut Superior Court, a Mediation offers no protection from abuse during its pendency. In contrast, parties in a conventional Divorce Action are protected by Automatic Orders wherein Automatic Orders serve to maintain the status quo with respect to both finances and children.
• Automatic Orders go into effect upon the filing or service of a divorce complaint and restrict actions that could disadvantage you or your spouse during the legal action. Examples of these protections cited in the Connecticut Practice Book §25-5 provide that neither party shall go into unreasonable debt by borrowing money or using credit cards or cash advances.
  • Permanently take your children from Connecticut without written agreement or a court order.
  • Take each other or your children off any existing medical, hospital, doctor, or dental insurance policy or let any such insurance coverage expire.
  • Change the terms or named beneficiaries of any existing insurance policy or let any existing insurance coverage expire, including life, automobile, homeowner’s or renter’s insurance.
  • Deny use of the family home to the other person without a court order, if you are living together on the date the court papers are served.

If a mediation is not successful, you will likely need to start over. It is likely to be even harder to settle a case after a flawed mediation where your position was not adequately represented than to do it right the first time.

If your mediation is not successful, all the work you have done may be just wasted, as it will almost certainly not be admissible in Connecticut Family Court proceedings, no matter how unreasonable the other side turned out to be.

Qualifying Situations and Circumstances

For mediation to be effective, spouses must have complete trust, mutual respect, and be willing to work with each other throughout a very difficult process.

Disqualifying Situations and Circumstances

Mediation is always contraindicated in cases where there is evidence or suspicion of domestic abuse.

Mediation in high-net-worth divorces is ineffective and not advisable if either spouse is not likely to be forthright about their financial assets.

It is important to fully consider and question if mediation can be equitably carried out in scenarios involving complex marital assets, family business, or where one spouse (or both spouses) lack an appropriate level of expert understanding to equitably participate in the related quid pro quo exchanges.