If you’re talking to other people about divorce, chances are you’ve heard someone say they tried mediation but it failed. Don’t let that discourage you from trying mediation. There are some basic steps you can take to make sure your mediation is successful.
Mediation isn’t about just showing up on a certain date at the right time – there’s much more to it than that and making the commitment to being properly prepared will make a significant difference in how long mediation takes and the eventual outcome.
Making your mediation a success is the topic for this episode of Conversations About Divorce. Joining me is mediator Joe Dillon with Equitable Mediation. You can listen to the show or keep reading …
Understand What Mediation You Want
Mediation is using a neutral third party to facilitate a discussion but it comes in several different forms. Parties can use mediation to resolve a single issue or they could use the process to mediate their complete divorce from start to finish. Mediation is often used by people who don’t have lawyers representing them and it is also used by people who have representation when the attorneys are making a final push for settlement before heading to trial.
Many jurisdictions have mandatory meditation. Even that can be confusing because it doesn’t mean you have to mediate. What it means is that if you and your other party are not able to agree, then you’ll need to go to mediation. While you are required to mediate and to participate in good faith, you can’t however be required to come to an agreement.
Joe Dillon describes mediation as “another tool in your toolbox.” Understanding the form of mediation that best suits your situation will help you choose the right mediator and know what to expect.
Is Your Case Suited To Mediation?
Successful mediation is dependent on good faith negotiation and that is dependent on full disclosure. For this reason, Dillon says that when there has been “financial infidelity” such as when one party has been hiding assets or there has been an undisclosed purchase of a major asset, then the case is probably not suited to mediation.
Parties also have to be willing and able to negotiate. There are some psychological conditions such as personality disorders or severe clinical depression, where a party lacks empathy, doesn’t have the capacity to compromise, is not able to grasp the situation or is not able to do the work necessary to make mediation successful. Mediation is not likely to be successful for these people.
Succeeding at mediation can also be a question of timing. The spouse who doesn’t want the divorce and who is in denial may be able to mediate once they’ve made some progress in their grieving but starting the process too soon and forcing this party into mediation can result in frustration all around.
Dillon says, “As a mediator, you are always asking am I doing more harm than good. You want people to get the best result for their situation. We like to think that mediation is great for everyone and it’s not. There’s a small percentage of people who can’t mediate ultimately.”
A common assumption is that if there has been any domestic violence the case isn’t suitable for mediation. Dillon says, “I feel like we victimized people twice when we say no to mediation.”
In these situations, Dillon has used “shuttle mediation” where the parties are in separate rooms and never meet face-to-face. The mediator moves between the rooms. The mediation could also take place at a courthouse with all parties going through security screening on entry and where law enforcement can be alerted to standby outside the mediation rooms. Negotiations can take longer under these conditions but it can be done if this is what both parties want.
There’s Nothing To Lose In Trying Mediation
The beauty of mediation is that it doesn’t commit you to using only that process. You can always have one or two mediation sessions and then if it becomes apparent that it isn’t going to be productive, for whatever reason, then you can escalate to using traditional litigation or maybe Collaborative Divorce.
Dillon says, “Knowing that you can always hit the eject button makes people willing to try mediation.” There’s nothing to lose.
Do You Both Have Something To Gain?
It’s not essential that both you and your spouse have exactly the same goals for mediation but there has to be a potential benefit to each of you for going through the process.
That means before you go to your first mediation session, you should have a good idea of what you would like to accomplish. That might be to get divorced spending as little as possible on legal fees, it could be to get divorced without litigating, it could be to negotiate what you consider to be a fair agreement on spousal support.
Your mediator will likely spend a portion of your first session asking each of you what you’d like to accomplish and then discussing the order in which to address items. Remember, you don’t have to agree with your spouse’s goals – so long as you both have an incentive to participate, you could get the outcome you want.
Do You Have the Right Mediator?
In most states, mediation is an unregulated profession so you can’t look for a particular license or qualification. What you can look for however is someone who has experience mediating domestic relations cases and has experience in the areas that are important to you, such as parenting issues or financial concerns.
You can also look for a professional organization in your state. The Mediation Association of Colorado for example requires its professional members to have completed a 40-hour mediation training class, 100 hours of practical experience and evidence of on-going education.
Dillon recommends that you speak to at least three mediators and review their websites before committing to one. Dillon says that perhaps the most important question to ask is, “Am I comfortable sharing information with this person?”
Even if you choose to work with an attorney-mediator, your mediator can’t give you legal advice. A mediator can share with you what they understand the law to be but how that might apply to your specific situation or how a judge might rule on your case, would be considered legal advice and you’ll need to consult with an attorney for that. Doing that before your mediation session or in between sessions will increase the likelihood of coming to an agreement.
Leave Your Emotional Issues At Home
Mediation is a forward-looking process. The focus is on reaching agreement on the division of finances and how you will parent together. The standard advice is to approach these as business discussions and yet it’s almost impossible to do this without some of the associated emotions spilling into the discussions. And sometimes, the emotional outbursts provide opportunities to break an impasse.
However, the mediation session is not the place to process all your emotions or to try to understand why your spouse made the choices they did or why your marriage is ending. These issues are best handled by a therapist or divorce coach and if you can’t compartmentalize them, then they may interfere with your ability to mediate.
Dillon has observed that one person usually takes on the family finances and that means the other person is at a disadvantage unless they carefully review the information that the other party has provided. When both parties understand the marital finances, the playing field is leveled.
If you’re the one who hasn’t been handling the family finances, you need to invest some serious time and effort in getting prepared whether that means studying statements on your own or working with a divorce coach who can quickly bring you up to speed. Dillon jokes that this is what he calls “the lost weekend” but that lost weekend will pay you back many times over.
The same applies to parenting plans. At the very least, you should review the template your state provides for a parenting plan so you are familiar with the different elements and have been able to give some consideration to what will work for you and your children.
Joe Dillon is the co-founder of Equitable Mediation which specializes in helping divorcing couples in New Jersey and Illinois complete all the steps to divorce peacefully, fairly and cost-effectively. Not sure if mediation is for you? Download Joe’s free ebook, 10 Compelling Reason To Mediate Your Divorce.