As divorce becomes more prevalent, litigating spouses are frequently offered a detour off the path to divorce court commonly referred to as alternative dispute resolution.
Lawyers, psychologists, therapists, social workers and others offer mediation or arbitration to help divorcing couples in what some promote as a "friendlier" and "more humane" way to end a marriage.
While in traditional divorce negotiations Marital Settlement Agreements and Parenting Agreements are worked out by each side's lawyer and then filtered back to the client, in divorce mediation, couples negotiate their property settlement and parenting agreements with a neutral mediator guiding the negotiations. Typically, lawyers play no part in the actual negotiations but may advise their clients, review any agreement reached, and present it to the court for final approval and entry.
Many clients are not suited to mediation. To begin with, most people who seek lawyers for a divorce do so because they do not want to or cannot mediate. There are a variety of reasons that a client is not capable: deceit, anger, guilt and not being in a position of equal information or strength to negotiate all impede on a person's ability.
The mediator is often in a difficult position if one party has been the dominant force in a relationship. Women frequently do not have the same information on finances as men do, and must rely on their husband's representations of financial conditions as truthful. While mediators are taught to recognize power imbalances, and to neutralize their effects, the mediator must frequently suggest that a party consult with an attorney, financial planner or accountant to help get the information needed to negotiate and understand the ramifications of final agreement (e.g. the tax consequences of a house sale or a spouse's interest in the other's professional practice).
A reputable mediator should always insist that each party retain separate counsel(s) to engage in meaningful discovery prior to mediation, and to review the agreement made through mediation before it's made final in a court of law.