Mediation can be a cost-efficient and effective mechanism for negotiating your divorce settlement and parenting agreement especially when you and your spouse are committed to working out an agreement. As a disinterested third-party, mediators are neutral or are supposed to be. Unfortunately, that isn’t always the case.
With a very limited budget and few assets, my current guest, INRIS and his wife decided they would do their own divorce and opted for mediation. It quickly became apparent to INRIS that the mediator was biased in favor of his wife. Here’s INRIS:
I think that when you go into mediation, you just have to have your eyes and ears open for bias and then you have to adjust accordingly.
There were a couple of times during our process where, in hindsight, maybe that would have been an appropriate time to choose a different mediator. But again, nothing he did was particularly egregious until the last session and by the time you get to the last session, you’re almost done.
It became obvious to me sooner than it became obvious to my soon-to-be-ex.
He was favoring her and at first it was very subtle.
So, the mediation process, you have a meeting, he types up his notes from the meeting and sends it out. At the meeting you discuss specific topics, you have homework for what to address in time for the next session and you review his notes and then you make any corrections and so on, down the line. Keep in mind, I had a background in journalism myself and I’m a writer, among other things, so I am sensitive to language choice.
When my wife would say something, he would say in his notes, what she said as fact. When I would say something, he would say, “He claims,” whatever I said. It was little subtle things like that.
After a couple of times I did point it out to her and she was like, “I don’t know. I see what you’re saying, but if that’s the case it seems innocuous.”
Over time it became more obvious, especially when we were figuring out our relative incomes.
Both of us had been income-free for a period of time and then we both started making an income at about the same time. In determining what our incomes were for the sake of figuring out our financial agreement, he wanted to use her actual income for the year and her employment started, say in April, somewhere around there. So, he wanted to use what her total income was for that year as the basis for determining her percentage of our gross income. But he wanted to use my stipulated salary as my income.
That is a huge difference. From January to April my wife earned zero dollars and then from April on, she was earning something that if you look at it as a salary, was about $30,000 at the time. These were not well paying gigs. But if you would look at it in terms of the year, it was only—two thirds of her salary.
He wasn’t prorating hers, but he would prorate mine. It was at this point that my wife began to see that actually his bias was real.
I think one of the things that actually saved our divorce was the fact that both of us are intellectually honest and both of us don’t have that much of a problem keeping each other intellectually honest.
She didn’t really need me to belabor the point. When I showed it to her, she’s like, “Oh yeah, you’re right. That’s not fair. You need to either count both salaries or count both incomes, but you don’t compare income to salary when your income started in the middle of the year.”
Then, we would point this out to the mediator and there were times that she pointed out these discrepancies and there were times that I pointed out these discrepancies. It didn’t actually matter who pointed them out. Sometimes these discrepancies were not corrected by the time we got the next round of notes. He never actually seemed openly hostile during the process until the last meeting. But it was just on-growing accumulation of evidence that he was steering the ship definitely to one side.
We had some closing opportunities where all of us are in the room, everything’s agreed to, he’s printing up forms and he asks what our opinion is of the process. Now, I did not bring up the bait and switch at the end or the high pressure, “Let’s just close this deal thing” at the end, but I pointed out his bias and he seemed genuinely surprised that I saw any bias.
Then, he said, “Well, give me some examples,” and I laid out his word choice in the notes. I laid out the thing with how we were assessing each other’s income and Penny was nodding in agreement. She’s like, “Yes, I remember that happened,” and about how when we were going through the budgeting session he was always ignoring me going down into the red and only focusing on her budget. Again, he acknowledged that.
He heard this and to whatever extent he’s intellectually honest, he didn’t deny any of those things happened, although he very clearly didn’t see it as a problem. He said, “Well, it’s important to me to make sure that these things are fair and oftentimes things do not lean toward the fair side. As a general rule, things then favor the husband.” So, that for me was like, “Okay, you have now announced that you had this bias coming in.”
The Divorce Coach Says
It may sound obvious but if you suspect your mediator is biased then it’s likely not your imagination and it’s time to change mediators.
In the situation where the mediation is voluntary then the choice of mediators is by mutual agreement. That also means that continuing with a particular mediator is by mutual agreement so, if you don’t feel the process is balanced or the mediator’s approach is balanced, you can end the mediation and suggest to your spouse that you choose another mediator.
But like INRIS, you may be reluctant to do this.
First off, you may wonder if your perceived bias is real. Saying that you don’t think the mediator is being ‘fair’ sounds rather childish and whiny. This is where it helps to list the specifics of the bias. You can discuss this with your STBX but don’t be dissuaded if they don’t see what you’re talking about. INRIS was fortunate that his wife also saw the bias and was willing to correct for it.
You may be reluctant to switch because of the investment you’ve made so far. Switching mediators doesn’t mean all of that is lost. You should be able to take what you’ve agreed to so far to a new mediator and use that as your starting point. And “agreed” isn’t final until you’ve signed the legal document so if you are feeling that the terms are not equitable, then you still have the opportunity to renegotiate.
You may be concerned that switching will cause delays in the process and it likely will. However, take a big picture view … wouldn’t a month’s or six weeks delay be worth it if you came away with an agreement with which you were satisfied? And, if you continue, who’s to say that the continued bias won’t make negotiations more difficult. If you’re concerned about meeting deadlines in the legal process you can ask at your courthouse about getting an extension.
Money may also be a factor and that likely comes down to how much you’ve paid in advance. Read your mediation agreement carefully, understand the terms for refunds. Do ask your mediator to return any unearned fees, i.e. monies paid in advance for sessions not used.
Hearing INRIS’s story has got me thinking about how you could detect a bias before hiring a mediator.
I think one way would be to identify what you think are the specific challenges in your situation and to ask the mediator how they’ve handled such situations in the past. Another would be to also ask the mediator how they would handle a situation where the proposed agreement was markedly different from guidelines provided by the law.
If you went through mediation, I’d love to hear how the process worked for you? How equitable did you find the process? Did you have legal advice outside of mediation?
INRIS blogged about his divorce while it was in progress over at It Never Rains In Seattle … that’s how I first connected with him. It’s definitely worth visiting and looking through the archives.