The Rush to Divorce Mediation in the Time of COVID-19

Why certain couples might want to rethink that strategy.

May 13, 2020

For many, it feels like the constraints of this pandemic will never end, and it is hard to find a silver lining, particularly for those in the midst of divorce proceedings or considering filing for divorce in the near future while sheltering in place in the same residence as their spouse.

Some would say that one of the unexpected upsides of the COVID-19 pandemic is the idea that you can use this time to mediate your divorce with a soon to be ex-spouse. But while virtual mediation or any mediation may sound like an attractive option, it may not be the right choice for anyone who has difficulty advocating for themselves, has complex financial assets to assess, custodial issues, or trouble communicating within the marriage about finances and children generally.

Mediation might also not be optimal for those who are married to a spouse suffering from narcissism, bipolar disorder, borderline personality disorder, or other mental health issues, including rage or control issues.

Further, if you tend to have difficulty advocating for yourself with your spouse, or feel dominated or controlled physically, emotionally, or financially, it may be best to pass on mediation and choose a strong advocate/attorney.

I recently spoke with Tanya Bannister, Ph.D., the Director of Cognitive Therapy for Women Psychological Services, a specialty practice for the treatment of women’s mental health, about the issues women should consider as they debate mediation versus negotiation and even litigation to resolve a divorce.

“When one of my patients is contemplating litigation vs. mediation, I encourage her to be conservative about her expectations of her partner’s capacity to negotiate, as well as her own,” Bannister said. “If she or her partner were consistently unable to negotiate staying IN the marriage, it is reasonable that they would be unable to negotiate getting OUT of the marriage with equanimity. But if their separation and decision to divorce was not interpersonally fraught, then trying mediation is a more realistic route.”

One of the illusions that women often hold is that mediation offers a “more nurturant emotional experience of the negotiation process. Conversely, women may expect that litigation will be a more conflictual and hostile experience for her, rather than one of advocacy and education.”

According to Bannister, “a mediation could also play into the need to please and acquiesce, which is common in spouses of those with personality disorder traits, and maybe for some women in general.”

Bannister also suggested that if a woman is fearful of her partner’s rage or behaviors, she would not recommend a mediation, as she is likely to be emotionally overwhelmed and distracted in the process. Instead, she would recommend working with a lawyer directly to have an advocate who is not interpersonally involved, or intimidated by, her partner.

From my observation as an attorney and Certified Divorce Financial Analyst, while mediation may be an option for some couples, particularly those without significant assets and income, it is not the ideal forum for discovery of assets, finding hidden assets and income, or dealing with complex custody issues, as there is no one in the room to advocate for your best interest.

In other words, you are largely left in the mediation room to advocate for yourself, and if you don’t have all the facts, don’t know where all the assets are or even what they are, or are frightened at times to express your voice, I would recommend that you find an attorney who will have your back as you proceed through the divorce.

Additionally, for some, mediation may be the slower and perhaps more manipulative process. Many mediations lack structure for discovery, and there are no depositions to drill down on the financial issues and sometimes no valuations or income assessments.

Obviously, each mediation is different, as is each negotiation of a settlement, but having all the facts and having someone who has your voice in the room is particularly important to the disempowered or the party who has less knowledge and control of their finances.

If you still want to try to mediate your divorce, find an attorney who can guide you through and help you understand the financial picture. Work with your attorney to gain the information you need to help you determine your rights in achieving a fair and equitable settlement.

And if you are feeling overwhelmed, remember there are many resources available to help you. Many attorneys and mental health professionals are working virtually, as I am, so call an attorney for a personal assessment of your situation.

As I always say, it is most important to make the safety and mental health of yourself and your children a priority during this incredibly stressful time.

This is not meant to serve as legal or mental health advice as each situation is unique. Please seek out a local attorney and or mental health professional for advice specific to your situation.

Originally published May 13, 2020 in Psychology Today.