What is mediation?
We typically think of divorce as a conflict-driven process, but that need not be the case. Rather than hire lawyers and ready for battle in court, couples can choose to mediate their divorce. In mediation, spouses meet individually and together over a number of sessions with a trained divorce mediator to reach an agreement on the issues at stake in the divorce – child custody, child support, property division, debt division, and spousal support. Mediation has several advantages, including reduced conflict, reduced expenses, and a more lasting and acceptable agreement.
Given all of these pluses, why do a distinct minority of divorcing couples use mediation?
First, mediation requires a level of cooperation not all divorcing spouses possess. After months or even years of rising tension, two people have decided to end a relationship, a partnership, and a family. Generally, this level of tension does not happen because the two people see eye to eye on most things. So, when suddenly faced with working together in the same room on weighty issues like custody and property division that will lay the course for their futures apart, it should not come as a surprise that most couples find the task insurmountable.
Second, and related, mediation requires both spouses to actually be together in the same room, for multiple sessions. For many soon-to-be-divorced individuals, the physical presence of the ex alone can cause harsh emotional and physical responses.
Third, mediation requires the ability to communicate openly and honestly about expectations and goals in order to reach a fair and mutually acceptable outcome. Again, for spouses just splitting, with feelings still raw, the willingness to be open and honest may simply not exist.
Fourth, mediation requires partnership in that both spouses have to buy into the process completely and agree to do the hard work of negotiating a settlement. If spouses cannot move past their current emotional issues, they will not be able to sit rationally and reach a good outcome.
Finally, the mediator remains neutral throughout the process, and for spouses looking at divorce as a competition or third-party recognition, the mediator not taking sides can feel off-putting.
Can mediation work to resolve a divorce?
Mediation can work even in high conflict cases, but it requires a certain set of personalities and a willingness to work together that not all spouses are capable of in the heat of ending a marriage. But as more divorcing couples learn about mediation and its advantages, more spouses may find themselves able to transcend petty behavior to reap better rewards. Because divorce can be filled with too much conflict, spouses have become much more open to mediation. Indeed, St. Louis County and St. Charles County require mediation as part of their Local Court Rules as a way to shorten the divorce process and allow the parties reach an outcome rather than have a court impose an outcome on the parties.
How can you maximize your mediation experience?
First, prepare yourself for the experience in advance. You normally will not have an attorney present with you during the mediation (though you can consult with an attorney prior to and outside of the mediation). You will have to be near your spouse and engage in discussions with that person – a possibly challenging task if emotions are still raw over the end of the marriage. Role play with a friend posing as your spouse and see how you respond when your spouse falls into behavior patterns that cause you difficulty. The better prepared you are, the less likely you will become overwrought and react with emotion rather than logic.
Second, prepare your game plan in advance. In addition to feeling comfortable emotionally with your spouse in negotiation, you want to feel prepared to negotiate on substance. Think of the issues that need to be resolved. How do you want to divide the marital property? How much will you need in support or be able to afford in support? If you have children, what custody arrangement do you foresee as in the best interests of the children and workable for you and your spouse as parents and exes? Write out a list of your acceptable range of solutions in each category. The more of a game plan you have going into the negotiation, the more likely you will be able to negotiate successfully.
Third, prepare yourself financially. Review all of your bank statements, retirement accounts, stock portfolios, personal property. Prepare a budget for life as a single person and what you reasonably can afford and how much support you may need to get by. Determine if you have gaps in knowledge about assets or debts so that you can bring these matters up to the mediator.
Fourth, choose the mediator carefully. Every mediator has a different personality and approach. Before committing to one mediator, conduct a thorough interview and see if that person fits well with your goals and your personality. If you do not feel comfortable after the interview, you will want to find another mediator.
Fifth, think about how you appear to the mediator. We are all human, and how we dress, talk, and engage in conversation will impact outcomes. If you want to have the greatest impact on your mediator, you need to show your “best” side. A combination of transparency and “show” that works will help you in negotiations, particularly when with your spouse who may try to push your buttons. Showing some concern or sensitivity for your spouse and the difficulties of the divorce can go far in taking the edge off extreme positions. Above all, the one who appears most reasonable generally has the most impact.
Finally, have a plan in the event mediation fails. If you and your spouse do not reach a negotiated settlement, you will need to move forward in court. Much of what you learn in mediation should tell you how that path forward will unwind – will it be high conflict because you are so far apart on all key issues, or will you see a shorter path to success once a judge becomes involved? This will be a matter you will want to discuss with your attorney.
If you follow these guidelines, you will find yourself best able to take advantage of mediation.
Should you and your spouse agree to divorce mediation, please know that we are here to help and ready to meet with you and your spouse to discuss if we are the right fit for your mediation.