Divorce Mediation and Marriage Counseling

In some jurisdictions, before the trial preparation or discovery process can even begin, the law requires that both parties participate in counseling or attempt to resolve their differences with a trained mediator. Counselors and mediators are not always funded by the state and will therefore charge for their time, usually at rates similar to lawyers.

The idea behind mediation and counseling is to have trained professionals help defuse the emotional tension between the two parties and find areas of agreement that the parties may not have realized existed. Whether or not to engage in counseling or mediation, or both, is a decision that deserves serious consideration. If these methods do not result in a settlement, all the hard work and expense of litigation still lie ahead. If your would-be ex insists on being in total control or is abusive, you might be better off bypassing these alternative forms of dispute resolution if you can.

Spouses bent on prolonging the agony of divorce can and do manipulate the system into a form of financial and emotional torture for their former partners. Savvy divorce lawyers know how to wear down the other side-emotionally, financially, and physically-by scheduling expensive mediation sessions that go nowhere. Should this happen to you, it is important that you have a lawyer who is perceptive enough to recognize and put a halt to such manipulation rather than advising you to participate in counseling or mediation sessions out of a misplaced spirit of cooperation and compromise.

Some states have rules exempting abuse victims from having to participate in mediation or counseling with their abusers. If you have been abused and believe that joint counseling or mediation would merely be an opportunity for your spouse to continue the abuse, make sure your lawyer checks the law to see if you can be excused from court ordered counseling or mediation.

Similarly, issues you deal with in the context of couples counseling or individual therapy in a setting you believe to be confidential-can come back to haunt you in divorce court when the other side calls the therapist as a witness or subpoenas your therapy records and then hires an expert to put a damaging spin on what those records actually mean.

Suppose your spouse threatens to commit suicide if you don’t let your son live with him or her. You go into therapy to try to figure out what to do. You spend months going over the issues with your therapist, trying to reach the right conclusion, and your therapist compiles reams of notes on what was said during those sessions. Later, the opposing lawyer may subpoena your therapy records and provide them to your spouse’s hired expert to be interpreted in a damaging way. For example, if your final decision is to give up your son, that act--even though done to prevent your spouse’s suicide-can and will be used to demonstrate that you don’t care about your son. On the other hand, if you refuse to let your son see that same suicidal spouse because you think your spouse is mentally unstable and could be dangerous to your son, your refusal can and will be used against you to demonstrate that you are trying to deprive your son of his right to a relationship with his other parent.

Throughout the contested divorce process, you will be facing damned-if-you-do-and-damned-if-you-don’t choices. The more decisions you make without the direct input of your lawyer, the more risks you are taking. Therefore, if you decide to go into therapy, counseling, or mediation without your lawyer, make sure you first understand the potential repercussions of that decision.



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