In my work with divorcing couples, I have often observed that divorce agreements that result from the mediation process are less likely to be violated than agreements reached through litigation. The discrepancy appears to result from the cooperative nature of divorce mediation, which encourages separating spouses to come up with their own creative solutions for disputes stemming from their divorce. This personal investment seems to make mediation participants more likely to adhere to an agreement that they themselves crafted.
In contrast, former spouses who entered divorce agreements after protracted litigation often view their agreement as the product of pressure or unfairness, resulting in more post-divorce violations of litigated agreements.
Divorce Mediation Lets Spouses Craft Their Own Agreement
A central pillar of divorce mediation is that it allows spouses to flexibly and creatively fashion their own solutions to the unique problems posed by their separation. Mediation facilitates discussion so that spouses can identify and work towards common goals while avoiding confrontational and unproductive modes of communication. In general, divorce agreements that arise out of the mediation process are more closely aligned to the future needs and interests of the spouses who create them compared to agreements reached through litigation, which can be the product of leverage, pressure or coercion.
Lawyers and the adversarial nature of the litigation process isolate spouses from each other, preventing dialogue as each side fortifies their territory and digs in for a fight. Of course, most wars are finally resolved through diplomacy, and the same is true for divorce litigation. In the end, most litigated cases settle. However, the question remains: which peace is more likely to hold? A treaty negotiated under coercive pressure, or one reached through mutual agreement, based on mutually advantageous terms, before a shot is ever fired?
Separating spouses in divorce mediation retain full control over choosing their goals and how to pursue them. This allows mediating spouses focus on what matters the most to them, instead of focusing on the cycle of dominance, submission and entitlement. In the end, divorce agreements that comes after mediation tend to represent both spouses’ goals, rather than a negotiated surrender at the expense of one or the other. In short, mediation generates mutually beneficial agreements that are less likely to be violated by a spouse who feels he or she was treated negatively or unfairly.
Where both spouses participate in the crafting of their own divorce settlement in mediation, each spouse feels a sense of ownership over the agreement’s terms. Even when certain terms favor the other spouse, mediation participants tend to recognize that other terms within an agreement counter-balance other terms in their favor. Mediation empowers spouses, which often leaders to a deeper understanding of the negotiation process, the compromises made by each side, and the fairness of the overall agreement. When an agreement is negotiated by attorneys in a tense blur of stress and fatigue, former spouses tend to experience anxiety when reviewing their agreement instead of understanding.
In the end, the personal investment made by each spouse in mediation instills a sense of attachment and pride in the final agreement. Both spouses feel equally in control of the process, and consequently feel in control of their future. Obviously, mediated agreements are not immune to violations. In general, however, violating the terms of a mediated agreement feels enough like self-betrayal that most former spouses strive to follow the agreed upon terms.