{3:24 minutes to read} I attended a mediation workshop that focused on the various ways that a mediator can address an impasse in mediation, and help clients get beyond it.

Of the many tools, one that struck me profoundly was asking the clients how they think this would make them look in the eyes of their children. Not necessarily now, but when they are adults and may have a keener awareness of what happened in the aftermath of their parents’ divorce.

Manipulative? Some may consider it to be manipulative on the part of the mediator, but it goes to the very reason why most clients choose to mediate—they want an agreement that is in the best interest of their children. It also speaks directly to the part of us that wants others, especially our children, to see us in the best possible light.
What would the children feel as adults, if they came to understand that during the divorce:

• Mom deliberately made it difficult for dad to see them;
• Dad refused to pay adequate support for mom, resulting in her living at a much lower standard of living than him;
• One insisted upon an allocation of assets that, while within the law, left the other to be much worse off in retirement;
• One consistently spoke ill of the other, or permitted other people to speak ill of the other parent, in the presence of the children. 

It is never recommended that parents share the details of their separation agreement with their children, but separating couples would do well to recognize that there are things that children can see for themselves when they are older. When they look back and see examples like these, they are better able to understand exactly what happened during, and as a result of their parent’s divorce, and it can lead to disappointment.

In the midst of a difficult divorce, there are so many competing emotions that objectivity can be elusive. If a party is litigating, that lack of objectivity can become a motivating factor. That emotion may then be supported by their attorney, whose job is to advocate for the best deal for her client and become even more entrenched.

Fortunately, in mediation, clients can see the other side, even if they may not agree with it. They can be reminded of the bigger picture and what is truly at stake. They can make an agreement that would leave their children with the impression that they did right by the other parent.

The legacy of a divorce on children can be painful enough. Parents don’t need to add to that by making their children feel sad because one treated the other badly.

{3:48 minutes to read} As someone who is making a sincere effort to be mindful and present, and also as someone to whom these qualities do not come naturally, I understand how difficult it is to be patient. When you are in the midst of a divorce and want it to all be over yesterday, it’s even more of a challenge to let things work out in their own time.

If you want to mediate, I urge you to undertake this challenge with as much forbearance as you are able to muster. Mediation requires an element of trust in the process; trust to allow it to proceed at its own pace.

And it’s not only clients who need to be patient. Experienced mediators, too, may anticipate what the resolution could be for the parties—but have to exercise patience to permit the parties to reach their own resolution at their own pace.

We’ve all experienced the frustration of wanting something to move along more efficiently and feeling that someone seems to be putting up roadblocks. Whether it’s the other client or myself as the mediator putting on the brakes, I try to help clients who are anxious to get going and understand the value of patience with the process.
Patience starts with the review of the Agreement to Mediate. Clients are chomping at the bit to get started and I can see that some are being polite and listening despite seeing it as a waste of precious time. But a focus on the Agreement to Mediate is a very necessary first step and well worth the time it takes. To understand and buy in to the process, you need to understand:

• The roles of the mediator and the clients;
• Disclosure;
• Confidentiality;
• Consultants; and
• Fees you will be charged.

Then, as you move to substantive discussions, exercising patience can lead to an outcome that may not have been possible at first. It might be an outcome that neither the parties nor the mediator may have anticipated. It might be a breakthrough that arises from the passage of time between meetings, or it might be something that one or both parties initially rejected, but after going through an evaluation of other options, can now accept.

All of that said, there is a difference between being patient with the mediation process and permitting obstruction. The party may be:

• Deliberately delaying the mediation;
• Not doing what is required between meetings;
• Not producing documents; or
• Cancelling appointments.

These actions are not a question of patience, and the mediator needs to address whether or not the parties are both fully committed to the process.

Under the best of circumstances, patience is not easy, so it can be almost impossible to be patient when you feel that you are in a state of suspension until you sign that separation agreement. Instead, try to view each meeting as another step closer to the ultimate act of signing your separation agreement and being divorced.

{3:12 minutes to read} After watching the umpteenth presidential debate, you can imagine why I started to think about civility in personal and professional settings.

For most of us, civility in personal situations is automatic. We’re polite to strangers, say good morning, hold open a door and say you’re fine even if you’re not.

On the other hand, for those with whom we’re most comfortable, sometimes that automatic default to civility is lost. And for those with whom we’re in conflict, some of us may even constantly snipe at each other like those on the stage in the 2016 Presidential Debates.

So, do mediation clients have to be civil to each other? Not necessarily, but here are some reasons why I think they should.

You Want to be Heard

When you have a legitimate gripe against someone who acted badly and that person acknowledged that he or she acted badly, fight the urge to bring it up repeatedly. Constantly bringing it up in different contexts in dripping sarcasm will cause the other person eventually to tune you out. Not only will they not hear your continued complaints regarding their bad actions, but they won’t hear you on anything else, either.

You Need to Hear the Other Person

If you are so busy thinking about how and when you can rail against the other person and give the most nasty and biting remark, are you really listening to him or her? And if you’re not listening, you are not really mediating. Mediation requires both parties to hear and understand the other so that resolutions may be discussed that will meet both of your interests.

You Might Shoot Yourself in the Foot

When you repeatedly knock the other person about something, even if it’s legitimate and acknowledged, it tends to get diminishing returns. You run the risk that the other person, who may have started out feeling sorry and guilty, will eventually not feel quite as bad about what they did. Guilt does tend to lead someone to be more generous in terms of a settlement, but an unrelenting harangue can definitely chip away at someone’s guilt and generosity.
If you’re not ready to accept an apology and move on, so be it. You don’t have to do that. But it would be in your best interests to be civil to the other person. You don’t have to like him or her; you don’t have to act like it never happened. But you also don’t have to continually raise it with nasty and sarcastic reminders.

A departure from my other posts, and one that I hope will resonate with you.

Most people wanting to adopt a pet will typically look for a puppy or at least one under a year of age. But since we adopted Max, a miniature dachshund who was then between 10 and 12 years old, I consistently try to persuade anyone who is adopting a pet to consider adopting an older, or as they say in the world of pet adoption, a senior pet.

Admittedly, I was reluctant to adopt Max. But when we met him through his foster parent, I couldn’t resist and have never regretted it.

He was overweight, tentative, didn’t want to walk at all and was a little aggressive. We gave him glucosamine and took him for walks. We were careful with his diet, and until about 6 months ago, he was pretty spry for an old guy.
Within a few months of our adoption, we saw him lose his fear and aggression as he became more comfortable with us. He simultaneously became a lot more demanding but we didn’t mind because it was obvious that he appreciated us. He was my shadow, would follow me from room to room and would run, or his elderly version of a run, to go to bed with me at night.

Here is what I learned are benefits from adopting a senior pet:

• No house training;
• It’s is a very good thing to do, karma wise;
• The rewards of helping a dog no one else may adopt cannot be matched;
• You can have a major impact in terms of improving an older dog’s health and outlook;
• Let’s be honest–puppies are cute, but they can be annoying. They are all id while an older dog is usually a much calmer dog.

We had Max for a very happy 8 years, and we were devastated to have to say goodbye to him. I wanted many more years with him, but the time that we had was definitely worth it.

My other dog is now 9, but he has as much energy and playfulness as he did when he was a puppy, and is also a lot less irritating. While he’s considered a senior dog, I wouldn’t hesitate to adopt a dog like him.

So, when we’re ready to adopt another dog, we will look for an older dog and I hope that I can inspire you to do the same. You can’t make up for any terrible times they had before you, but you can give them a loving, happy and more healthy end of life. Adopting one of them will be the best thing you can do, not just for the pet but for you as well.

{3:54 minutes to read} Clients in initial consultations are sometimes hesitant to begin mediation because of:

• Fear the other will take advantage of them and the process;
• Friends and family saying they should have a lawyer fight for them;
• The other person having a greater advantage in bargaining power.

In previous posts, I’ve written how those kinds of concerns can be overcome in the process of mediation. You can have the support of legal, financial and mental health professionals, in and out of the process, to help you understand the law and advocate for yourself.

It’s much more difficult to address the concerns of clients who are hesitant for other reasons–reasons that are even scarier to them; They are afraid to take this step because it is a very big one requiring an acknowledgement that the relationship is ending. And with the end of the relationship, comes the fear of:

• Being alone;
• Being financially insecure;
• Being without your best friend. 

If you avoid going to mediation, you believe that can retain the relationship and avoid all the scary things.

I understand that. I have put my head in the sand on more occasions than I like to remember, thinking that the problem will just go away. Unfortunately, it never does, and ignoring a problem rarely leads to a good outcome.
In this case, ignoring your spouse or partner’s request to mediate will only lead to that person taking the only other step available to him or her– hiring an attorney. With that will come anger at your refusal to end the relationship in what that person believes is a more healthy and constructive way. And along with that anger may also come a refusal to compromise which probably would not have been the case in mediation.

So, if you’ve exhausted all of the options for repairing your relationship, including attending marriage counseling, and you are hoping that refusing to mediate will mean that your relationship will continue, it likely will not, or at least not in the way you would like it be. Please recognize that it may just lead to a more destructive relationship and ultimately, to a more adversarial and painful end to that relationship.

Instead, I suggest being honest with your spouse or partner about what is at the root of your reluctance. Express your fears and concerns. Those fears and concerns can and should be addressed in the mediation. If you need more time to deal with your loss, you can request that time for seeing a therapist or a divorce coach. As part of the request, offer a time in the near future when you believe you will be able to move forward and then, honor that commitment.
Your spouse does not want to cause you unnecessary angst or pain, but does want to take the steps to end your relationship. It would be best to do that together, rather than go through a more adversarial process.

Afraid to mediate? Sometimes sharing your concerns leads to answers you never thought about. Feel free to share your thoughts in the reply box below.

{3:48 minutes to read} When comparing mediated and litigated agreements, the first thought that comes to mind is that a mediated agreement would have terms that are balanced, would be more creative and would more accurately reflect exactly what the parties believe is best for their families.

The Language
Another important difference is in the language itself. Without considering the actual terms, one can see a difference in the terminology used in an agreement drafted after a mediation versus the terminology used in an agreement drafted after an adversarial process:

• The tone of an adversarial agreement is, well, adversarial - - legalistic, stiff, impersonal, cold;
• Parties’ names are not used in a litigated agreement; instead they are referred to as husband/wife, plaintiff/defendant;
• The terms custody and visitation are used in a litigated agreement as opposed to parenting plan and access with the children when mediating.

It’s more than the use of certain words, though. An agreement that is drafted by an attorney who is working solely for the benefit of her client, ends up being just that. There are phrases that are used that may not seem important to you as a client, but the other party’s attorney certainly will recognize them and object to them. At the same time, that attorney will be including certain phrases and terms that benefit only his client.

The Devil is in the Details
Another difference is that an adversarial agreement assumes that there will be problems between the couple, no matter who the couple is or how they relate to each other. So, a non-mediated agreement typically includes the minutest of details for an issue:

• Defining the number of minutes that constitute acceptable delays when returning children;
• A mandate to provide the other parent with 5 days notice if you want additional time with a child.

A mediated agreement will provide additional details when the couple needs them, but is not burdened with such extraneous language if it’s not necessary.

Since I no longer litigate, I only see these differences when a mediation client takes the agreement to be reviewed by an attorney who mostly litigates. I have had clients who were completely capable of making agreements between them and in fact, had been living separately and without discord for a period of time. Yet one of their attorneys added over half a page of detailed language in quite convoluted legalese, which effectively said that the parties may agree to additional access with the children. If the parties agreed to the additional access time, was this burdensome language necessary?

This is not to imply that a mediated agreement is less “legal.” A mediated agreement is as thorough, complete and enforceable as an agreement derived from an adversarial proceeding. More importantly, it is three more things: 1) It is based upon terms that both parties have determined for themselves and agreed upon;, 2) it is only as detailed as the particular clients need it to be; and 3) the language is personal to them and clearly understood.

Comments from Social Media

Well said, Clare! That is a good reason for the clients to use mediation friendly review/consulting attorneys even if those attorneys are also litigators.

Lauren Morrissey

{2:48 minutes to read} Budgets are not fun – composing them, living on them and even just having to think about them. So, I understand the look in clients’ eyes when I first talk to them about completing their budgets.

Here are 4 reasons why I think it’s vital to have accurate and complete budgets for each party in mediation.

Budgets are a reality check
No matter the level of income, a good percentage of my clients are living above their means. Seeing this in black and white makes it clear that changes will need to be made.

Budgets can help you make your argument for a support payment
While there are statutes to determine child support and maintenance, you are in mediation because you want to make an agreement that is going to work best for your family. Even though you will be advised of the amounts the formulas calculate, only a budget is going to reveal and help you argue if you need more or can’t afford to pay the amount that the statute provides.

Budgets can help you determine what can no longer be afforded.
When you are trying to divide the same amount of income into support for two households rather than one, budgets can help you determine what is a necessity versus what is a luxury. When one person cannot afford to pay rent, and the other person is continuing to maintain a country club membership, it makes it clear that a more equitable support plan is needed.

Budgets can help you make positive changes for the future
If your budget reveals that you are spending a large portion of your income on paying down debt and nothing on accumulating savings, you can decide how you both will work to eliminate that debt and hopefully incorporate savings for college or retirement into your future plans.

In my mediation matters, I use Family Law Software which enables clients to download a client version of the program and enter their assets, liabilities, expenses and income. However, some clients prefer to work with a financial professional to help them complete the program and work on budgets. It’s an additional expense, but is well worth it to have a more complete and accurate financial picture.

What does your budget reveal about your household expenses and priorities?

{3:12 minutes to read} In the summer of 2015, the New York legislature passed a statute providing for post-divorce maintenance. The statute was then signed by the governor and is effective for all matters filed in Court after January 23, 2016.

The statute provides a formula for computing maintenance based upon the respective incomes of the parties with a cap of $175,000 for the income of the person paying support. For a person paying support with income over $175,000, the Court may at its discretion, award support based upon consideration of some 15 factors.

The statute also provides the court with an advisory schedule, based upon the length of the marriage, for determining the length of maintenance.

Even though it was not yet “the law,” I have been talking about the statue with my clients since it was enacted in June, 2015 because I believed it is information they should have.

However, I have always stressed and will continue to stress to clients that using detailed and complete budgets is the best way to determine appropriate support for them. And it is as vital to look at the budget of the person who is paying support, as it is the budget of the person who is receiving support.

While the drafters of the new statute worked diligently to devise a statute that would provide consistency in awards across the state and work for as many residents of the state as possible, it is a formula that may or may not work for your family. Mediation gives a couple who is separating the opportunity to consider whether or not a formula is appropriate for them based upon factors such as

• Their particular housing costs, food costs and liabilities;
• The existence of extraordinary expenses;
• The ability to amend provisions if the person receiving support is likely to be earning more in the future, or reduce the support if the person paying is likely to have an involuntary reduction of income;
• The ability to build into your agreement “what happens if” for a special concern about the future.

This statute is one option for the parties to consider, but unlike court, in mediation you can discuss and reach an agreement that is personal to you and that meets both of your needs.

{3:36 minutes to read}
If you were to ask any parent if, under any circumstance, he or she would want to punish their children for something they had nothing to do with, they would think you were out of your mind. However, I’ve seen people do just that, though I doubt they are aware of it.

I’ve seen it happen most often in these situations:

• The other parent had an affair
• The other parent worked night and day
• The other parent ceded any responsibility for the children.

Now, here is that person sitting across from you, looking for substantial parenting time while you are thinking that right was squandered by past behavior. Why should he/she have the right to now spend so much time with the children? The simple answer is because it’s better for your children to have a good and healthy relationship with that parent than not.

The parenting plan is not designed to be in the best interests of either of you; it should be focused on the best interests of the children. And having a meaningful and fulfilling relationship with both of their parents is best for them. 

You might want to ask if it’s fair that someone can mess up so terribly and then still get to take those children that you practically raised all by yourself, for overnights and vacations? Yes, it is.

Just because the other parent hurt you and betrayed you and maybe even was not as good a parent as he/she could have been, doesn’t translate into his giving up the chance to ever be a good or better parent. Often parents are actually better parents after the divorce.

I understand that it hurts on two levels:

• First, it’s likely that during the time you were together, you took on most of the parenting. The thought of being without the children, even for a night, is heartbreaking to you.
• Second, there can be a very real part of you that wants the other parent to hurt. But you don’t ever want to hurt your kids.

You might need help in coping with either the absence of the children or the anger, and there is absolutely nothing wrong with that. Or maybe you will need a parenting plan that starts slowly with overnights until both you and the children are comfortable with all of the time that the other parent wants.

So, go to a therapist to deal with the loss and anger and/or if necessary, both of you go to a child specialist or co-parenting specialist to work on these issues. Establish a plan for addressing any concerns you have about parenting by starting slow and building up over time.

But don’t punish the children for something they had nothing to do with, by stopping them from enjoying a relationship with both parents.

If you found yourself in this type of situation, how did you cope with your anger?

{3:30 minutes to read}

After hearing Katty Kay speak about the book written by her and Claire Shipman, The Confidence Code, I immediately downloaded it and am very glad I did. They performed an exhaustive study on the highly sought after quality of confidence:

• Is it something that we are born with?

• Is it something that can be taught?

• Is it more important to be confident than competent?

and most significantly, why is it that so many women are hampered by self-doubt and blame?

Their hypothesis is that while there is some genetic component to confidence, it does not mean that if you were neither born with a strong sense of confidence nor nurtured to be confident, you will never be able to develop confidence.

To the contrary, it may be difficult and challenging, but a person can choose to care a little less about what people think, you can take more risk and most importantly, you can try to stop being perfect and please all people.

The concept of confidence came to my mind recently when I saw a client who clearly was taking on the demise of her marriage as some kind of personal failure and all her fault. I felt for her since it is hard enough to have to deal with the loss of a partner and face a new world that is unfamiliar and frightening. To do that while simultaneously blaming herself for everything that went wrong needlessly adds to the distress. One doesn’t need a career in family law to form the opinion that there is rarely one person who is solely to blame for a marriage being broken, short of a situation involving domestic violence or emotional abuse.

This theory is apparent to anyone who has ever been involved in a long term relationship. One person may have paid less attention than should have been paid to the other, but at the same time, the other person may have previously rebuked efforts at contact or developed interests that no longer involved the other. Neither is completely blameless, but also neither is completely at fault.

And no one is perfect.

It’s healthy to examine your behavior, recognize what role you played and learn from that introspection for your future relationships. It is equally healthy to examine the behavior of the other and recognize the role that the other played as well.

Imagine you are talking to a friend who is going through a divorce, could you conceive of yourself telling her it is all her fault? Of course not. You would be kind and supportive and likely tell her that she didn’t make all the mistakes in the marriage. So, try to be as supportive and kind to yourself as you would a friend.