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Iím Ready to Get Divorced, but My Spouse Isnít. Part Two - The Mediation

October 30, 2013  | 

Previously, I wrote about how a mediation can begin if one spouse isn’t quite as prepared to divorce as the other party. Now, I would like to address what happens when those feelings do not diminish as the mediation progresses.

The practical effect in a mediation when one party is reluctant to divorce can be that the reluctant party expresses blame and fault against the other party continually or says things like “I didn’t want this, so why should I have to agree to...” But it can also have a much more tangible and profoundly negative effect on the process, such as trying to delay the divorce by cancelling sessions, not coming prepared to sessions or constantly changing previously agreed upon terms.

When clients express anger and blame, it is most often because that person needs to say it, and even more importantly needs to have it acknowledged. Over time, that party will feel that he or she was heard and can come to accept that it is time to move on. If not and such comments are preventing the parties from reaching agreement, then the mediator can try to address it either with the party in a caucus or with both present. Or, the parties or one of the parties may benefit from a divorce coach.

On the other hand, it is much more problematic when the reluctant party intentionally or unintentionally derails the mediation. I say unintentionally because often the behavior is passive and may not even be recognized by the party. The mediator can then bring it to the attention of the party, again, either in a caucus or with both parties present, depending on which would be better received. If, however, it reaches the point where cancellations, refusing to come prepared with disclosure or constantly changing agreed upon terms makes the mediation untenable, the mediator needs to address that and withdraw if necessary, and mediation may not be an appropriate resolution for that couple.

I did have a mediation which continued for several years. It was very difficult in the beginning because the husband felt very strongly about remaining married, and the parties returned sporadically, sometimes having a year pass in between meetings. Ultimately, the reluctant party did come to accept the end of the marriage, but he could only do so on his own time. This was prior to no fault divorce having been adopted in New York State, so the other party had no option to litigate because she had no grounds for divorce, but even if that wasn’t the case, I suspect that they would not have litigated because neither party wanted to litigate. Even though the husband did not want to get divorced, he also did not want to end up in a bitter Court battle, and the wife acknowledged that she had no choice but to let the husband come to terms with it in his own time. The agreement they reached worked for them and their children, and even though it took longer than the wife wanted, she recognized that having the husband reach this point on his own terms was a better outcome than forcing him to adapt to her timetable.

Clare Piro Attorney and Mediator

Attorney & Mediator
500 Mamaroneck Avenue | Suite 320
Harrison, NY 10528
Tel: 914.946.0848

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