Ever since I took my very first divorce mediation training course back in 2003 I have tried to do my part in educating the public on what should be the standard way to get divorced. Why wouldn’t couples first choose to attempt to sort out their divorce issues in a collaborative setting focused on getting them educated on their rights and responsibilities, cooperating in exchanging all relevant documents, exploring a wide range of options for settlement, and making all the decisions together without the courts stepping in? In this week’s blog we take a little time to explore when mediation may not be the best solution. Some of the things that might get in the way of using mediation to successfully resolve your divorce include complete lack of any semblance of trust, inability to advocate for one’s self, coercive situations, when one spouse is unwilling to engage in a collaborative process or is incapable of being reasonable and when safety is an issue. Most divorcing couples are good candidates for mediation and don’t have these issues, but let’s explore them a bit deeper all the same.
Lack of Trust. For mediation to work there must be some degree of trust. One of the cornerstones of divorce is full disclosure. Before decisions are made regarding the division of property and the setting of support, spouses are required to exchange all relevant information regarding the extent and value of assets as well as all sources of income. The Court requires that each spouse certify they have provided a complete disclosure prior to Judgment being entered. In mediation we rely on both spouses to be forthright in identifying all assets, liabilities, income and expenses. If there are questions we can find ways to allow the questioning spouse to be able to verify the representations of the other spouse via obtaining confirming documents but if questions remain in mediation we do not have a formal avenue of discovery as there is in litigated cases. For effective mediation, when it comes time to make the decisions there needs to be confidence that all the correct information is on the table. If there is not trust in the numbers then couples are not in the right place to be making the important decisions of their divorce.
Inability to Self Advocate. The role of the mediator is to educate the couple to place them in a position to make practical decisions regarding the issues and tasks at hand. The first step is having the couple absorb the information provided so that each spouse has an understanding of their rights and responsibilities so that they can make good decisions. The mediator must strive to provide the information in a way so that it can be absorbed, but at the end of the day it is the responsibility of each spouse to ask questions and listen attentively to get to that important place of understanding. If either spouse is not in a position to sufficiently understand the issues they will not be in the right place to proceed and would likely need their own advocate to assure good decisions are made on their behalf. Needing an advocate does not mean mediation is no longer an option. Each spouse can hire a consulting attorney to help provide additional support and mediation can proceed with one or both spouses having an attorney participating in the process.
While the first part of self advocacy is getting educated, the second part is speaking up for yourself. Again, the mediator has the task of providing an environment where both spouses are comfortable to share their own perspectives. Some people have a hard time speaking what is on their mind and can be intimidated by the other spouse. For mediation to be healthy and effective, it is important that there is no acquiescence and that both spouses are empowered to share their perspectives and openly express any disagreement. The mediator’s job is to identify when there is a situation of power imbalance and incorporate an approach that provides support for the vulnerable spouse while preserving trust in the mediator’s neutrality. Sometimes this can be a very difficult task and if mediation cannot deliver both spouses to a place where they can confidently participate in the decision making, then it might not be the right approach to the divorce.
Coercive Situations. Coercive situations go hand in hand with our last consideration of self advocacy. There are those people who engage in mediation to selfishly get what they want for themselves, knowing that their spouse will give in. The mediator educates the couple, but the couple makes the decisions. The couple is allowed to make decisions contrary to what the law says. As a mediator I have handled certain cases where the couple decides to do something very different from what the law provides for. In those situations I take a lot of time to point out the discrepancy, to give the disadvantaged spouse space to self advocate, to make sure this is what they want, but in the end my role requires me to follow the wishes of the couple. If both spouses are satisfied with it, who am I to say what they should do? I just do not want these things taking place if there is some sort of coercion happening in the background and one spouse is saying they are fine with it when they really are not. Mediation is not a good option if there is any sort of coercion going on.
Unwillingness to Engage. Mediation is voluntary. It takes two willing participants. I spoke a little bit last week about the challenging task of getting both spouses on board with mediation. If one spouse is unwilling to give it a go, there is no forcing it. The standard approach to divorce has historically been to lawyer up. If one spouse has already done so then it can be difficult to get that spouse to shift to the requisite collaborative approach. There can be anger and resentment that initially gets in the way of considering an out of Court approach. If one spouse is unwilling to engage, mediation is not the option for you.
Unwillingness to be Reasonable. Mediation leaves decision making in the hands of the couple. If there is disagreement, it needs to be worked through so that the couple gets to a place of agreement. The mediator does not step in and make decisions for the couple as a judge would. The mediator has their bag of tricks to use to try to move the couple to a place of common ground, including providing reality checks, brainstorming options that might allow both to accomplish what they are looking for, and using communication tactics that help each spouse hear and understand the other. At the end of the day if a spouse is unwilling to move away from an unreasonable position, the option is to accept an unfair resolution or to simply remain stuck. Sometimes the answer to unreasonableness is to take the matter to the Court so that the Judge can apply the law and make the decision. I think mediation is a fantastic option because I have faith that the couples who engage in mediation will treat each other reasonably so that we can successfully complete their matter.
Safety. The safety issue goes hand in hand with the coercion and self advocacy issues. If there has been domestic violence, can an environment be created where both spouses feel safe, able to express themselves and reasonably work together to build a reasonable settlement? This is a question that must be answered at the outset. How can we assure comfort and safety? How do we protect against coercion? Finding a way to approach things collaboratively can be the best way to turn down the heat, but it is essential that the victim be fully supported. If a safe environment addressing the above questions cannot be secured, then mediation is likely not the best way to proceed.
The Other 10%. I do not have any hard data to support it, but from my perspective I think that about 90% of divorcing couples are capable of resolving their divorce in a mediation setting. This article is really about the other 10% who have some sort of obstacle standing in the way of engaging in mediation as it is meant to be. Let’s revisit my question from the very beginning: Why wouldn’t couples first choose to attempt to sort out their divorce issues in a collaborative setting focused on getting them educated on their rights and responsibilities, cooperating in exchanging all relevant documents, exploring a wide range of options for settlement, and making all the decisions together without the courts stepping in? The answer is really that there is some dynamic with the couple that would prevent them from successfully accomplishing these required tasks. If you know there is something standing in the way, then don’t waste your time with mediation. Otherwise, give it a chance and you might very well find out you are part of that other 90%.