January 31st, 2023
Divorce litigation can be a lengthy process, and it doesn’t always result in the best outcome. Due to the cost-effectiveness and low-conflict approach utilized, alternative dispute resolution methods such as mediation and collaborative divorce have become increasingly common ways to end a marriage. While there are numerous benefits to using mediation to divorce — including remaining in control of the outcome of your case — a spouse might sometimes be reluctant to take part. However, even if a spouse refuses mediation, there may still be a few things you can do to encourage them to participate.
Identify the Underlying Concerns of the Reluctant Spouse
There can be many reasons a spouse may be reluctant to attend divorce mediation. They might worry about the potential for conflict or have fears that it will be too difficult. Although mediation can sometimes be hard, taking your case to court can be even more challenging. While mediation is strictly voluntary, and you can’t force your spouse to participate, it’s crucial to understand their underlying concerns to meet them where they are.
Educate Your Spouse About Mediation
In some cases, a spouse refuses mediation because they do not know what it is. Some spouses mistakenly believe mediation is like marriage counseling. They may not understand that mediation is a private, non-adversarial, out-of-court process that can be used to help you divide property, make decisions about parenting time, and determine support issues. It’s important to educate your spouse about mediation and the benefits that come with it. Minnesota requires all cases filed in court to attempt some form of Alternative Dispute Resolution (ADR) process, like mediation, before the court will hear any motions. This is because the court prefers people reach decisions that both people agree to rather than asking a judge to decide. Ask your spouse to attend an information session with you to learn how mediation works, no prior commitment to mediation is necessary.
Offer to Pay for the Initial Mediation Session
Your spouse may simply refuse to agree to mediation because they are passive and want you to do all the work during the divorce process. If this is the case and you are financially able, you might consider offering to pay for the first mediation session. While it takes the cooperation of both parties to mediate a settlement, taking the initiative and offering to pay for the first session may help to move the process along. Once your spouse attends the first mediation session and understands what the process entails, they might be more willing to participate.
Explain That You Are Working Toward the Same Goals
If your spouse is unfamiliar with mediation, it can be helpful to explain that the process can allow you both to work toward the same goals. Emphasize that mediation can help you save the time and expense that can often be associated with divorce — and avoiding litigation is in the best interests of your children. Rather than engaging in a contentious court battle where a judge will decide the outcome, you and your spouse can make decisions between yourselves about issues that impact your children and your co-parenting relationship with the assistance of the mediator facilitating the negotiations.
Don’t Force the Issue of Mediation
Mediation is meant to help spouses reach a peaceful resolution to their divorce. However, it’s important to reiterate that it is a voluntary process — it will only work when both spouses are open to the idea and willing to work toward a resolution. If your spouse refuses mediation or is reluctant, it’s important to be patient and not force the issue. Doing so can only increase tension and create conflict where there might not have been before.
Let the Mediator Contact Your Spouse
The mediator does not act as attorney for either spouse — they are a neutral party who helps facilitate healthy communication, identify the issues and what information is needed, and guide the spouses toward a settlement agreement. If your spouse refuses mediation, it may be helpful to have the mediator call them or send them a letter. Sometimes, a reluctant spouse might agree to mediation when the mediator contacts them because they are now being asked by someone who is neutral, rather than their spouse. The mediator can also educate them about the process.
Emphasize that Mediation Can Provide You with Communication Tools
If you share children with your soon-to-be former spouse, you will be in each other’s lives and be required to communicate with one another for years to come. Emphasize to your spouse that mediation can provide you with the tools you need to communicate respectfully and build a positive co-parenting relationship. The tools for healthy communication that the mediator will equip you with during the sessions can prove beneficial to help with future problem-solving.
Know When Court is a More Appropriate Option
In highly contentious cases where one or both spouses have ill will toward the other, court may be a more appropriate option to end the marriage. While it is always a good idea to try mediation first, it’s important to know when litigation is the better option. For instance, in cases involving domestic violence, there are significant power imbalances and a lack of basic trust, or where a spouse has narcissistic personality traits, it may be best for you to pursue the litigation process.
Learn More About Divorce Mediation and the Collaborative Process
If you are considering divorce mediation or the collaborative process as an alternative to litigation, it’s important to discuss your options with a knowledgeable attorney. Divorce and family law attorney Louise Livesay has been committed to helping clients in the Twin Cities area resolve divorce matters peacefully and respectfully for over two decades. We welcome you to contact us online for a consultation or by calling 651-294-2338.