{4:00 minutes to read} The mutual goal to reduce the financial costs of a separation is a primary motivation for most of my clients, second only to the desire to reach an agreement with as little rancor as possible. Regarding the financial costs, however, there are steps that clients can take to ensure that mediation fees remain reasonable by limiting the number of sessions that are needed.

Complete Your Work Between Meetings

At the end of my summary of the meeting, I include a “to do” list for the clients and myself.
While much of the work in between meetings centers on the financial aspects of divorce — doing budgets, gathering documents, etc. — there are other tasks that can come up. These are things that either can’t be done at a meeting, or would not be the best use of time, such as: 

• Researching school districts in different communities if you need to move to a more affordable home;
• Researching the costs of new housing;
• Considering employment opportunities if you need to enter a new career.

Taking care of this outside of the meetings will help the mediation progress more quickly.

Think About the Issues

If the mediator suggests you consult with another professional during the course of the mediation — an attorney, a financial or mental health professional — there is usually a good reason for that. Either the issue is beyond the scope of what the mediator should be doing or has the expertise to do, or the time being spent in the mediation is not as productive as it could be. In either case, working with someone else may make the mediation smoother and ultimately less costly.

Don’t Try to Mediate by Email

In Part II, I’ll address additional ways that you might be able to reduce the costs of mediation. 

{4:30 minutes to read}  Over the years I’ve been mediating, I’ve been asked by potential clients if the following concerns would mean that they could not mediate their separation. Here are some of their questions and my responses:

We disagree on everything. 

I am very angry at my spouse. 

Anger and other strong emotions are usually present in a mediation. A trained and experienced mediator should be able to address those emotions so they do not derail the process. 

If the anger is unabated, however, or if there is a stream of unrelenting sarcasm, the likelihood of reaching a successful agreement can be diminished. In those circumstances, either working with a divorce coach or possibly co-mediating with a mental health professional could be helpful. 

My spouse won’t tell me about our assets. 

If your spouse refuses to fully disclose income and assets in mediation, there cannot be a mediation, and you will need to proceed in a different manner, so that you are confident that full disclosure is made. 

I don’t know anything about finances 

It’s not unusual that one person took control of the family’s finances in the marriage, leaving the other unaware of things like the account used to pay bills or when the car insurance premium is due. In mediation and through disclosure, you will learn about your assets, and if you need assistance outside of the mediation to prepare and understand a budget or other financial issues, you can individually work with a financial professional. 

We have complicated assets. 

Some people think that mediation is only useful to resolve matters pertaining to the children, when in fact, all aspects of distribution of assets, allocation of debt and support are to be discussed and resolved. If one of you owns a business or if it’s too difficult to determine income for one or both of you, or if you have a difficult budgeting scenario, working with a financial professional to act as a neutral is always a possibility. 

I don’t feel comfortable with speaking up and making decisions. 

Self-determination is a main tenet of mediation, and you will need to both advocate for yourself and make decisions on your own. While the mediator can help to address an imbalance of power or lack of business experience between the clients, the mediator cannot advocate for a party and will not make the final decisions for you.

But there are some steps you can take so you can mediate. You can have either an attorney or a financial person in the room with you, as long as your spouse agrees. Or, if you feel comfortable enough in a meeting alone, you can meet with the professional outside the mediation to receive guidance as to what to propose and how to respond in the meetings. 

There is domestic violence in our marriage. 

You will need to disclose this to the mediator, and if the mediator believes that he or she has the training and ability to proceed, there will need to be sufficient protocols in place to insure safety. Care must also be taken to assure that self-determination of both parties is possible under the circumstances. 

Concerns such as these may not mean that you cannot mediate as long as you work with the right professionals and are assured that you have all of the information you need to make good decisions.

{3:42 minutes to read} It’s clear that until an agreement is signed, the tentative agreements you make along the way are not legally enforceable. But, those tentative agreements are vital as you progress from meeting-to-meeting in order to reach an overall settlement.

While you are free to change your mind up until the time you sign your name on the agreement, there can be consequences to making changes to something you previously agreed to:

Other Terms Can Change As Well

Accusations of Delay/Non-Commitment to the Process 

While you may be sincere in wanting to make a change, the other person may just think that you are delaying and trying to drag out the process.

Lack of Trust

To you, it’s just looking at things differently and simply changing your mind. To the other person, it can appear as if you are not keeping your word. Recognize that you may need to re-establish trust and your commitment to finalizing the mediation.

All of the potential consequences of changing your mind aside, if this is something significant to which you feel you can no longer agree, you need to raise the issue. It’s better to deal with the fallout now than to sign an agreement containing terms you do not believe are in your best interest and which you will resent later.

So, If you’ve decided that you want to change a major term that you’ve previously agreed upon:

1. Be aware that other terms you didn’t expect to change may be altered, and don’t dismiss them out of hand or become resentful;
2. Explain in a way that the other person understands why this is so important to you and why you didn’t recognize it initially; and
3. Demonstrate that you are open to letting the mediation process continue.

And before you agree to something that you’re not sure about, remember that rather than yes or no, it’s perfectly okay to say:

• Maybe;
• I need to think about that; or even
• Let me wait and see how other terms go.

Then, outside of the meeting, you can give some real thought to the issue in question so that when you do commit, you’re sure about it. 

{3:42 minutes to read} Interim agreements are agreements that determine certain terms before the parties sign a comprehensive separation agreement. Some of the topics that may be covered by these kinds of agreements could be: 

• How to handle the sale of a house;
• Support and parenting plans;
• A provision that marital assets stop accumulating as of a certain date; and
• Arranging for the disposition or purchase of a particular asset.

Typically, in my practice, clients informally agree upon matters such as these before they even begin the mediation. Many have already been living apart and determined how they want to share access with the children and pay expenses, or feel comfortable with a verbal agreement made during mediation. Still others feel that in the time it would take to consider the terms of an interim agreement, they could reach an overall settlement. All of these types of clients feel comfortable taking certain steps towards separation without a written agreement.

For those who don’t feel comfortable with informal agreements, though, interim agreements can be valuable, keeping both parties feeling secure and willing to continue in mediation.

There are two kinds of interim agreements that parties in a divorce mediation can make:

1. A temporary interim agreement that is expected to be amended by further discussions; or
2. A permanent interim agreement whose terms will ultimately become part of the overall separation agreement.

A temporary agreement would be helpful if the parties feel that they’re not quite ready to determine something such as final support terms, but one party is concerned about the other leaving the joint home without having something in writing about support payments. This temporary agreement would be binding until the parties ultimately agree to permanent support in a separation agreement, or if mediation is not successful, until an order of the court is made.

A permanent agreement could be used if the parties, for example, have mediated parenting and child support terms completely but are not yet ready to finalize the separation agreement on all terms. For whatever reason, the parties want to be bound by the terms they have agreed upon, and so sign a parenting and child support agreement. This parenting and child support plan will then be part of their Separation Agreement without further revision.

Whether temporary or permanent, entering into an interim agreement, while helpful, has serious consequences. The parties must be clear that they fully accept and are willing to abide by these terms since they will be binding unless the parties agree to change them. They must acknowledge that there will be additional fees and time incurred in the drafting of the interim agreement, and should have the agreements reviewed by counsel.

{3:48 minutes to read} In New York, we refer to “joint legal custody” as joint decision making in which neither parent has a superior right to make decisions for the children. It sounds reasonable, and most parents agree to joint decision making without much thought.

But then I ask “What do you think will happen if you can’t agree upon a major decision?”

A large percentage of my clients believe that they will not have any substantial conflicts in making joint parenting decisions, much as they had been doing. If clients tell me that there is a particular issue about which they believe they will be in conflict, that can be addressed in mediation and hopefully resolved.

For others, there is a concern that there will be conflict, if not on all but on some issues. If that is the case, language that simply provides “The parties agree that they shall have equal decision making and shall consult with each other in regard to all major decisions affecting the children” is not particularly helpful.

For other clients, there are no particular issues they imagine will be difficult, but they do have a history of different parenting philosophies and choices. For those clients, we discuss a process that they believe they can follow to help them make joint decisions.

First, we address what would be the major decisions upon which they will need to agree. Typically, they are all decisions affecting a child's growth and development, including:

• Choice of school;

• Course of study;

• Extent of travel away from home;

• Extracurricular activities;

• Choice of camp;

• Major medical treatment;

• Lessons;

• Psychotherapy; psychoanalysis or like treatment;

• Part or full-time employment;

• Purchase or operation of a motor vehicle;

• Especially hazardous sports or activities; and

• Decisions relating to actual or potential litigation involving a child directly or as beneficiary.

Each family has different concerns, and some other topics that are added to joint decisions specifically are camping, age at which a child may be left alone, and social media use.

So, what can a couple do if they have conflict in joint decision making after they sign the agreement?

First, of course, they engage in meaningful discussion about the issue. If that does not resolve the conflict, a structure that many couples choose as being the most likely to resolve the issue with the least amount of discord is this:

Typically, the painful and challenging emotions that exist during the mediation of the separation will have eased somewhat over time. Most parents are then able to resolve joint decisions even if they have conflict. But if they can’t, having a process to follow is helpful. 

{1:00 minute to read} My colleagues, Dr. Jeff Zimmerman and Dr. Lauren Behrman, posted an article on how your children may pick up on the negative communication between you and your spouse/ex-spouse, even if you do not.

The article reminds us that all communication in front of children, both verbal and nonverbal, has an impact on them. I’m also heartened that Jeff and Lauren propose practicing mindfulness to help parents transform unhealthy practices into healthy ones.

I believe the insights in this article may be of benefit to all parents, whether divorced or not. To read it, simply click on the link below:

Post-Divorce Parenting Communication:
What you say, and how you say it, really matters to your children.

Thanks, Jeff and Lauren, for this reminder and remedy.

{3:48 minutes to read} While the New York Child Support Standards Act (CSSA) is not perfect, it does provide a sensible framework for addressing the indirect expenses that a parent experiences. These indirect expenses are the most difficult to calculate and the most difficult for the child support payor to understand.

“I’m willing to pay 100% of my children's expenses for clothing, activities, medical insurance and expenses — why should I have to pay child support?”

That may sound logical, but it ignores the many tangible and not-so-tangible expenses that a custodial parent incurs.

So, to address those difficult-to-quantify expenses, the CSSA uses a formula that multiplies parents’ incomes by percentages based upon the number of children.

What I understand from my upstate colleagues is that the CSSA works fairly well. But in the metropolitan New York area where the housing costs are radically different from other parts of the state, it can be challenging for someone to pay support by the CSSA and maintain a home where the children can visit comfortably. It can be equally challenging for the recipient of child support to make ends meet on support by the CSSA.

In those situations, I’ve seen couples take two approaches:

{3:06 minutes to read} The concept of hope has been on my mind since a good friend recently told me that she will be awarded the Spirit of Hope award from her cancer support group. Throughout the many fears, disappointment, and pain that living with cancer inflicts, she has remained remarkably hopeful these past several years. She is the embodiment of hope to me, and she is truly deserving of this honor.

It’s human to feel fear when confronted with the risks and challenges of life, whether they are real or perceived. It’s also human to feel despair when you consider the horrors that people do to each other on a far too often basis and the disregard with which many people act. Hope doesn’t mean that you ignore your concerns or pretend that bad things don’t happen.

To the contrary, the advice Archbishop Desmond Tutu gives, in speaking about the power of hope in The Book of Joy, is to distinguish hope from optimism. He teaches that optimism is a superficial and fleeting emotion that can dissipate easily when something doesn’t happen as you expect. He sees the concept of optimism as dependent more on feelings than on reality.

Hope, on the other hand, is based upon the “firm grounding of conviction,” and the knowledge that in time, the fears, concerns, and bad times will pass.

So, to have hope, you do need to have faith—faith in human nature, in relationships with others, and in the community of all human beings. It is something that you feel deep inside; a firm belief that no situation is utterly without hope.

We all experience challenges in varying degrees, but to face any challenge with despair turns us inward at a time when we should be seeking others for support. It can be a scary thing to connect to others when you feel so vulnerable and helpless. It can be much easier to respond negatively and remain enmeshed in your own cocoon. But, Archbishop Tutu suggests that remaining inward will only magnify the feelings of despair and that it is hope that will be the antidote.

To me, hope is why we keep trying, why we fall in love, why we have children, why we maintain friendships. We couldn’t achieve any of that without faith in others and a belief that things will work out ultimately.

May we all choose hope for the new year. 

{4:06 minutes to read}

“We don’t need to mediate–we agreed to everything already and just want you to write it up.”

“We don’t have any assets, so we don’t have anything to talk about.”

“We don’t need a separation agreement, we just want to get divorced.”

Undoubtedly, as all mediators do, I’ve heard these statements, or variations on them, more often than I can count. It’s understandable, but it’s not that simple.

Here is why it’s more complicated than you may think and why coming to an initial consultation for mediation can be so helpful, even if you think that you don’t need mediation.

We’ve agreed to everything

• Have you considered holidays, vacations, school recess periods, and how the schedule may change as the children get older?
• Have you done budgets to see if the formula for child support is workable for you?
• Have you discussed what happens if one of you loses your job or makes more or less money than you do now?
• What about insurance if one of you dies?

We don't have any assets

• Does that mean you don’t have any marital assets? Or does it mean that you kept assets in your individual names and you are each keeping them?
• Did either of you or your employers make any contributions to a retirement account?
• How about debt?

Can’t you just do divorce papers?

Uncontested divorce papers are best for couples who have worked everything out in a Separation Agreement or who don’t have much in the way of assets and don’t have children. If not, it’s more complicated to complete a set of uncontested divorces papers. And you lose the protections and the detail that you can achieve in a Separation Agreement.

So, while it will make the process much easier if you’ve agreed upon everything or have limited assets, that doesn’t necessarily obviate the need for mediation. Attending a consultation won’t obligate you to go any further, and you can get some valuable information to help you make a good process choice.

{3:42 minutes to read} I was talking to a colleague recently about a mediation. She was surprised that it took as many meetings as it did to reach a resolution and that the couple almost terminated the process. It was a relatively short-term marriage of a few years, and they had no children, so she had not expected that it would be difficult.

I agree that expectations of difficulty are often misleading. At an initial consultation, I can only judge a mediation’s difficulty by the dynamics between the couple and the few things that they say before I can remind them that it’s only a process discussion. But appearances can be deceiving when unexpressed fear, anxiety, and hurt are lurking in the background. And that can arise no matter how brief the marriage or how uncomplicated the financial situation is.

In a short marriage, the assumption might be that, since they were not together that long, it shouldn’t be a difficult mediation, but that is false in at least a couple of ways. First, the short length of the marriage doesn’t mean that they are not experiencing a loss of someone loved, counted on and relied upon for emotional and financial support. It also ignores the fact that they likely had a relationship before they married. The act of marriage doesn’t make all the other time spent together meaningless, and the feelings from your pre-marital relationship are bound to have an effect on your mediation.

Moreover, no matter the length of the marriage, the fact that the parties have no minor children means that there are fewer topics to discuss, but it doesn’t necessarily mean that the mediation process is easier. The loss still exists, along with the fear, anger, and anxiety that typically accompany that loss.

Often, the couples themselves fall into that trap, telling me that theirs will be an easy mediation. But no one can necessarily anticipate the emotions that are likely to arise and make a topic that seems to be straightforward on the surface, devolve into a difficult conversation:

When discussing support, the person who makes less money may suddenly come to terms with the fear that his or her lifestyle may change. 

When we discuss what will happen to the marital home, the fear of living without the other person suddenly becomes a reality. 

How they have been paying their household expenses can bring up a surprisingly angry response, because underneath the anger is the hurt that a spouse refused to share a bank account and combine incomes. 

No matter the length of the marriage, an affair can bring up anger masking the hurt, guilt, and shame just below the surface. 

If these emotions arise in mediation, the mediator can help you address them in a constructive and understanding manner so that they don’t prolong the conflict and inhibit you from working toward a resolution.