5 Signs Mediation Won’t Work for Your Divorce, According to a Mediation Expert

Divorce is a not-so-fun choose-your-own-adventure—hire a mediator? Go straight to a divorce lawyer? The circumstances of your split matter a lot, says Dr. Jann Blackstone, co-author of Co-Parenting Through Separation and Divorce: Putting Your Children First and a former child custody mediator for the California Superior Court. And while mediation helps in almost all circumstances, she says, there are a handful of red flags that may lead you to skip the mediation sessions and head straight for divorce court.

1. There’s So Much Animosity, You Can’t Talk to Each Other

According to Dr. Blackstone, the theory behind mediation is to resolve a conflict. The theory behind litigation? It’s to win. “Mediation offers a win/win solution to a problem—you can sort out the details of your split in a cooperative and more cost-effective manner. With litigation through the courts, someone wins and someone loses,” she says. But if a couple has zero interest in working things out or coming to a mutual agreement on things like shared assets or custody, mediation is unlikely to be successful. “If there’s so much anger, you can’t discuss problems productively, mediation will be tougher.”

2. There’s a History of Drug or Alcohol Abuse or Domestic Violence

If someone is actively using drugs or alcohol, it can cause difficulty when it comes to mediation. “That person may not be in the frame of mind to negotiate logically,” Dr. Blackstone explains. A history of domestic violence that occurred prior to the breakup (or a victim who is afraid to negotiate) is another obstacle to mediation, especially if there’s a restraining order in place, which prevents parties from meeting together in person. Still, there are work-arounds, but again, the couple has to be comfortable and willing. “With a restraining order, for example, a third party can always act as an intermediary to aid in the negotiation,” she says. “But again, the couple has to be comfortable and willing.”

3. There’s a Mental Health Issue

Per Dr. Blackstone, if there’s a mental health problem that has not been addressed—say, someone with bi-polar disorder who is in the midst of a manic episode and unable to stay focused—mediation is a no-go.

4. There’s No Seeing Eye-to-Eye on Custody

If parents don’t agree on a custody plan, they are typically court-ordered into mediation to sort things out. “The hope is that they will come to an agreement about a parenting plan for their kids,” she says. “But when parents dig in their heels and negotiation is impossible, mediation—even the court-ordered kind—won’t work and a judge has to make the decision.”

5. One—or Both—Parties Aren’t Willing to Put in the Time Needed to Sort Things Out

Mediation takes time—it’s more of a journey to figure things out than a race to sign on the dotted line and move on. If a couple isn’t willing to devote the time, mediation probably isn’t the best route to take.

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