Divorce mediators vary. At one end of the spectrum are mediators who view the aim as reaching a settlement. At the other end are mediators who view the aim as providing the highest quality process for whatever decisions the spouses choose to make.
The difference may appear subtle. Perhaps surprisingly, those mediators who focus on providing the best possible process tend to have a higher settlement rate and a higher rate of client satisfaction.
Mediators who focus on a settlement are injecting their own agenda into the mediation. This can lead to subtly or not so subtly pushing the spouses toward agreements that one or both of them may later regret. This pushing can take the form of the mediator moving the process forward too quickly, injecting suggested solutions too often, advocating particular solutions, pretending to know accurately what a judge would decide and otherwise leaning on one or both spouses.
Aim of divorce mediation
In my view, the aim of divorce mediation should be to assist each spouse to be at their best so that they can make the most capable decisions for themselves and their children. Yes, the spouses are usually asking for assistance in trying to work out a divorce settlement. So this provides a direction for the process. Normally they also would like to the process to be efficient and economical.
The mediator is responsible for and should focus on the process, not the outcome, of the mediation. Given a motivated and capable mediator, if he/she is genuinely okay with whether or not the spouses reach full agreement, this paradoxically tends to result in higher quality settlements. The main reason is that the mediator is not exerting pressure to get the spouses to agree. This gives the spouses more freedom and flexibility. They feel empowered by the mediator and the mediation process.
The less the mediator influences the decisions made, the more spouses will own the process. They won’t feel like it or its conclusions were imposed upon them. So the aim of mediation should be to provide the spouses with the best opportunity possible for reaching their own well-informed agreements.
And the spouses can each choose whether it is better to take this full or partial set of agreements or pursue an alternative course of action – usually going to court. It’s the exception when going to court is the best course of action. But having a judge make decisions may be better for one or both spouses than giving in to flawed agreements.