“I don't care; I just want to get this over with.”

{3:45 minutes to read} When those words are spoken by a client in mediation, I always get a little twinge of dread.

To the client, this makes perfect sense. Clients choose mediation to reduce cost, reduce turmoil and proceed as quickly as possible to a separation agreement. So, why not just give in so your matter can be resolved?

If it’s a relatively minor point that is in contention, then, sure, give in and move on if this is within your parameters for a an overall settlement.

What causes me pause is when this is said, in exasperation, over a major point that needs further exploration and discussion before the client can fully say yea or nay.

My fear is that when the feeling of frustration over the pace of the mediation process is long gone, the client is confronted with the ramifications of that decision and there will be regret, possibly even dissatisfaction with the entire settlement and mediation process.

So, what do I do when I hear those words and the other party is just dying to take this offer and move on?

• I explore why the client is saying that.

• I ask them to explain why their stated reasons for opposing it are no longer valid.

• I reality test and ask them to put themselves 6 months or a year or 2 in the future and see if they would still feel the same way.

Then, if I am sure they understand what they are doing and the consequences of their decision:

• I will reiterate that they are in mediation and have the right to make informed decisions for whatever reason they choose.

• I will put language in the agreement indicating they were fully informed of other options and made the decision in recognition of the possible future consequences of it.

• I might also possibly require that they consult with an attorney in order to help ensure the future viability of the agreement before I would feel comfortable drafting it.

Sometimes after that, a client will acknowledge maybe he or she spoke too soon. However, I’ve also learned that while I may see impending doom on the horizon, for a client, it can be a freedom and release that is well worth whatever they are relinquishing.

I had one of those clients a few years ago, who in spite of having a rather aggressive litigator as an attorney, gave up significant assets and support, just because he wanted to be separated NOW. The couple did return to mediation recently, and while he acknowledged it was a struggle living with the decisions he made, he was not consumed with regret, angry over the process or even angry with his former wife. It was worth it to him to move on when he did.

So, while there may be cases where those words could mean trouble, in other cases where it’s a fully explored and informed decision, it could well be worth the sacrifice.

Social Media Comments

Thanks for the thoughtful article, Clare. As you say, one needs to reality test and make sure that the client understands the implications, but in the end, it is their decision.

Nancy Radford

{2:50 minutes to read} I am fortunate enough to say that I am not a child of divorce. Since I don’t have that first-hand experience, I have strived, as most mediators do, to learn about the impact of divorce on children and how that can be ameliorated. In mediation, the best interest of the children is paramount.

The Children

The Parents

In mediation, we work with parents to minimize the negative effect of divorce on children as much as possible. We also educate them as to resources that are available to them and their children, but we cannot extinguish the effect.

It’s especially hard because the parents are going through their own loss, and they too are confronting what could be a scary and unfamiliar future. While they are well intentioned and want to be there for their children, they may not be capable of being there as fully as they wish.

The Mediator

Mediators are trained to understand child development as it relates to a parenting plan. Mediators understand how to recognize when professional help is needed and can advise their clients of community resources for both parents and children.

It also doesn't hurt for a mediator to try to imagine what it would be like for a child to learn that their parents are separating. How would they feel and react?

A Resource

While research books abound, I suggest reading the children’s book, Divorce is the Worst by Anastasia Higginbottom. I was offered a preview of this book and recommend it highly. Although meant for children, I think it is equally enlightening for adults.

To a child, it conveys a sense that whatever they are feeling, it is okay. And while our instinct might be to help a child understand and focus on the idea that “things will get better,” this book shows that right now, from the child’s perspective, things are really not good. It helps a child to not feel guilty or like they are acting inappropriately because of how they feel in the moment.

For a parent, the book provides a clear way for them to recognize that as bad as it is for them, their children had nothing to do with the divorce, yet are taking a pretty big hit. Keeping their focus on their children and what they are feeling is crucial in this unsettling time.

{3:30 minutes to read} .

Do we choose our profession because of our basic personality, or does our profession cause us to form a certain personality trait?

I've always had a “never say die” kind of attitude. I would always think that I could fix it or make it better, be it a relationship or a friend who was upset. I could fix just about anything that had gone awry. A basic problem solver.

This attitude wasn't always to my advantage when it came to personal relationships, but as an attorney, it served me well. In real estate law, my clients wanted to buy or sell a house; not sue the other person or keep a contract deposit. I always believed that short of someone getting denied a mortgage, a contract would close no matter the issue. In matrimonial law, needless to say, there were many problems, and it was my job to solve those problems if at all possible.

In traditional matrimonial law, part of the bargain is that clients give you their problems, and to a great extent, give you control of themselves and the outcome. As a mediator, I don’t control my clients and no longer solve their problems; I help them to solve their own problems. In mediation, they own their problems, they own the process by which they are resolved, and they definitely own the result.

Did being a mediator change something in my basic personality? I would say yes, in the sense that I made a transition from problem solver to facilitator. Like most mediators, I came to mediation after having practiced a more directive, helping profession. I had to fight my initial urge to just fix other people’s problems and tell them what to do. It’s especially difficult when the clients may very well want you to do just that, but expedient as it may be, that is not mediation.

I think practicing mediation has made me a more attentive and better listener. It’s much easier to hear what someone has to say when you’re not thinking about how to make it better. I listen more not just to clients but to friends and family. I can recognize when someone wants empathy and to be heard as opposed to assuming that they want me to help them fix it.

Do we choose our profession because of our basic personality, or does our profession cause us to form a certain personality trait?  In my experience, the answer to both questions is “Yes.” Our personalities initially guide us toward a profession that suits, but the profession can also change and mold our personalities.

How does your personality fit your career? Have aspects of your career changed your perspective or personality?

{2:50 minutes to read}  We all approach situations differently. Some, when confronted with a problem will attack it in a logical, methodical fashion, with the goal of getting it resolved in the quickest and most economical way. Others will see even a minor crisis as an impossible situation that can only be remedied by spending a lot of time complaining about it, and a lot of money needlessly. Often, these same people are married to one another.

In a real emergency, where health or safety is an issue, my husband is definitely the person I want to have around. He resonates calm but also takes charge and knows exactly what to do. In situations not so dire, though, his conduct is strikingly different. His first reaction is that it’s a disaster of epic proportions, and he immediately predicts the worst-case scenario.  

True to the theory that opposites attract, I am in the more methodical camp for minor problems. And while I don’t panic or become ineffective in a true emergency, I will freely admit that he does much better than I in those situations.

So, like most couples, we work well together as a team and appreciate the other’s strengths and weaknesses. We make jokes about our differences, but we don’t get angry at the other person for approaching a problem differently.

Couples in Crisis

With a couple who is not in a healthy relationship, and who is in conflict or going through a divorce, there is much less recognition of the other’s strengths and much more focus on their weaknesses. Behavior that previously was acceptable is now at best irritating and at worst intolerable.

In mediation, I’ve seen this play out both ways, and clearly, parties who accept and work with the other’s need to either take things more slowly, have things explained more than once or even chart out a plan tend to get through the process and have a much easier time. Those who are constantly exasperated at his or her spouse reacting in the very same way that they have always acted when confronted with a problem make the process that much more difficult.

As a mediator, I try to acknowledge how each party needs to work through an issue, whether it is with a step-by-step plan, recognition of how scary the prospect of setting up a separate household can be, or someone who always sees the worst-case scenario.

With a party in conflict, I try to recognize:

• That for someone who is more prone to panic, the idea of getting an apartment within even what you see as a reasonable time frame can be insurmountable.

• The fear that is behind inertia and talk about the process step by step.

• The need to have answers to all the questions and concerns.

• That this is who they have always been, and they’re not doing this because they want to annoy me or their spouse.

Whether you are the planner, the worrier, the excitable, the panicked, the bewildered or the methodical, try to respect and accept your partner’s approach for what it is. You will find the path a bit easier to navigate.

Comments from Social Media

Reducing destructive, costly anger through assessments & skill-set development leadership; Commer. Mediation

Michael Toebe

{2:50 minutes to read}

Clients can become exasperated by all of my “what if” questions as I try to provide for future changes of circumstance. I do this with the hope that their agreement can address these changes so they never need to return to mediation.

However, there are some things that can never be anticipated, and other circumstances that, while they might happen, are not worth the time and effort to explore at the time the couple is separating.

So, what to do if something changes and your agreement doesn’t work for you any longer?

First, talk to your ex and see if you can work it out on your own. If it is something minor like wanting to tweak the days or times of access, you can just agree upon it. If it is something major like a relocation, change in primary residential parent, or a change in support, you would need an amendment to your agreement, and then an amendment to your judgment of divorce.

If you cannot agree to everything on your own, then I would suggest contacting a mediator. Most separation agreements and all mediated agreements contain a provision that provides if there is a future conflict, the parties will first address it in mediation. Even if the mediation first clause is not in your agreement, mediation is always an option if you both agree to mediate.

Why mediation first?

Whether you mediated your initial agreement or not, mediation should be your first choice for a number of reasons:

• It gives you the greatest likelihood of achieving an agreement that will be in the best interests of both you and your children.

• You can start the process quickly.

• You can control the costs.

• You and your ex speak for yourselves rather than having attorneys speaking for you.

At this point in your life, it is important that you control and decide your future circumstances just as when you were getting divorced.

Future posts will consider the different types of issues that may unexpectedly arise after you are divorced and what possible resolutions you can consider.

Confused about whether you should mediate or not? Please give us a call or leave a comment in the box below. We would be happy to answer your questions.

Comments from Social Media

"Excellent article, but I would emphasize that they should be "mediation-friendly attorneys."

Mark B. Baer

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Clare thank you for writing this! It is concise and well written. I will hope to post this information very soon

Denise Coggiola

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Bravo, Claire! I would add some of the "Pros" for choosing mediation: 1. It is a confidential settlement arrived out of court, not by a "stranger in the black robe" 2. A mediated MSA has mutually agreed upon decisions by both parties, following informed consent re their options. 3. Mediated agreements are more likely to be followed and stand the test of time, as opposed to litigated agreements that often require repeated visits to the courtroom for modification. 4. For families with children, the mediation process teaches co-parents how to successfully co-parent into the future, rather than continuing ti pull on opposite ends of the rope. Parties are taught "new scripts" to enhance their communication process, thus ensuring their children will not become collateral damage of the divorce battlefield.

Jann Glasser

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[Time to Read: 3.9 mins]

While it’s hard for most people going through a divorce to imagine dating again, it’s more likely than not that you will, and that you will be introducing this new person in your life to your children. Having been that new person who was introduced to two stepchildren, I’m happy to share what worked for us.

First and foremost:

Do Not introduce the person to your children unless you know it is a serious relationship, no matter how long you have been dating the person. You have to strongly feel that this person will be there for the long haul.

Second:

Take the child’s age and temperament into consideration and make the introduction in the way that is comfortable for the child. For example, with a younger child, take more care to be sure it is done in a relaxed and non-threatening way. Invite other family members with whom the child is comfortable and/or do it in a fun place, like an amusement park or zoo.

Third:

Be respectful of the other parent’s feelings and don’t surprise him or her. Be sure that you give a heads up to your ex before any introduction is made. It’s not only the right thing to do, but you don’t need to add further complications to what is an already delicate situation.

The worst thing you can do is let your child be the bearer of the news that there is someone new in your life.

Finally:

Give it time. Be aware of and honor your child’s feelings. This is all strange and new to them, and it’s not unusual for them to be fearful about sharing you with another person. Be sure to reassure them that they remain your priority, spend time alone with them and let them know that you will be there for them just as you always have been.

The first introduction to someone whom you care about can significantly impact how your children feel about that person in the future.

• If it’s done well, it can lead to a relationship where they are comfortable and feel that there is another person who is there for them.
• If the first meeting is not well thought out or premature, they may never rebound and may always feel somewhat threatened and resentful that someone is taking time with you away from them.

I’m very glad to say that I fall into the “done well” category. I had good introductions to my two stepsons, one of whom was in his second year of college, and the other, 8 years old. We followed what I am suggesting above, and I’m happy to say that I have had enriching and fulfilling relationships with them both over the last fifteen years. And as an added bonus, I have the good fortune to be a step-grandmother of two.

Have you found love the second time around? How are you planning to make the introduction to your children? Please feel free to share your thoughts in the box below.

[Time to Read: 4.1 mins]

At the initial consultation, clients often express concern that within the process of mediation they may not “get a good deal.” They wonder if they will be able to mediate because they do not have the same financial expertise as the other party, or perhaps the other party is more educated or has more business savvy. Whether these feelings are real or perceived, they can be a barrier to the clients’ ability to feel comfortable with the process and secure in the knowledge that the decisions they make are sound.

I tell clients that within mediation, they can obtain all of the help and guidance they need to make good decisions for themselves and their family. They may consult:

An attorney:

• To learn their legal rights and responsibilities before they begin mediation
• To discuss terms of settlement that they can propose in mediation
• To accompany them to the mediation, if all parties agree

A Certified Divorce Financial Analyst (CDFA)

• To get help in making a budget and assembling financial information
• To educate themselves on financial matters
• To accompany them to the mediation, if all parties agree

I saw this in action as a consulting attorney to a client in mediation. She had attended a few sessions, and they had reached tentative agreements on most major points. However, the client was unsure and uncomfortable with the terms and her ability to make ends meet. Yet, she did not voice her concerns in the mediation because her husband had a much stronger personality.

I advised her not only as to the law, but also how she could raise her concerns in the mediation and offer alternatives. I also referred her to a CDFA, both so that she could feel comfortable asking questions that she was afraid to raise in the mediation and also so that the CDFA could assemble written backup to show how untenable the terms her husband proposed would ultimately be for her.

Six months later she returned for a consultation with a very different plan and a very different voice. She was unrecognizable as the woman with whom I first consulted. She even came armed with a table showing how her future costs for medical insurance would cripple her financially; a chart that she devised herself with no help from the CDFA.

She told me that the mediator suggested I attend the next session, and I was glad to hear her say, that she didn’t want me to attend. She wanted to do this on her own and felt that she was capable of advocating for herself at this point. She did in fact do so, and the parties did reach a mutual agreement in the best interests of both parties and their children.

Had she gone to an attorney who didn’t recognize how a person can achieve knowledge and empowerment in the mediation process, that attorney likely would have told her that she should not be in mediation without offering alternatives to keep her in mediation while ensuring her interests were protected. She may have ended up with a similar settlement, but she never would have gained the strength and knowledge that came with being her own advocate.

In my last blog, 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 continually expresses blame and fault against the other party. They may say things like “I didn’t want this, so why should I have to agree to...” 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
• Constantly changing previously agreed upon terms.

When clients express anger and blame, it is most often because they need to say it and even more importantly, need to have it acknowledged. Over time, that party can feel that he/she has been heard and can come to accept that it is now time to move on.

If not, and such comments are preventing the parties from reaching an agreement, then the mediator can:

• Try to address it with the party in a caucus.
• Try to address it with both parties present.
• Suggest that one or both parties meet with a divorce coach.

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 reluctant party. The mediator can then bring it to their attention either in a caucus or with both parties present, depending on which would be better received.

If that doesn’t work or if the non-cooperative behavior escalates, mediation may not be an appropriate resolution for that couple.

I had a mediation which continued for several years. It was very difficult in the beginning because the husband felt very strongly about remaining married even though they had been living separately before the mediation began. The parties returned sporadically, sometimes having a year pass in between meetings. Ultimately, the husband did come to accept the end of the marriage.

Because this mediation was prior to no fault divorce having been adopted in New York State, the wife  had no option to litigate because she had no grounds for divorce. She acknowledged that she had no choice but to let the husband come to terms with the divorce 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.

Are you and your spouse on the same timetable for divorce?

Social Media Comments

I enjoyed your message Clare. A point of acceptance to proceed in good faith in mediation is the possibility of Decree of Legal Separation instead of Decree of Dissolution of Marriage. It can be changed by either party in Colorado after the court has issued the Decree. There is no defense but the Legal Separation status remains until either party motions the court for divorce.

Catherine Schulteis

It’s rare in my practice for both parties to be in the same frame of mind about getting a divorce. Most often, one person is more prepared for the process and the separation, while the other party may not even have come to terms with the concept that the marriage will come to an end.

When I used to litigate, you needed grounds for divorce. If only one person wanted the divorce but had no grounds, then he or she would either have to stay married or be prepared to make a very generous settlement offer. Now, if a couple settles all parenting and financial matters between them, they may divorce based upon the grounds of “irretrievable breakdown of the relationship.”

In mediation, you can’t proceed unless both parties agree to the process. However, I have seen clients who clearly state from the beginning that they don’t want the divorce, but they agree to mediate because they see the inevitability of it and prefer mediation to litigation.

What if my spouse refuses to accept the inevitable?

• If you haven’t already done so, you can try marriage counseling as long as you are honest in your motives. Sometimes marriage counseling can help the reluctant party recognize that the marriage is over.
• If that doesn’t help, you can see if your spouse is willing to have a consultation with a mediator, even if he or she isn’t fully committed to the process as yet. Sometimes, just hearing that you are serious about wanting to end the marriage and are taking steps in that regard, helps the other person accept that the marriage is over.
• Finally, you may just have to be patient and give the other person some time to get to the same point as you. If this is the case, you should be sure not to give the other person mixed signals even though you are remaining in the marriage. If you can’t or don’t want to wait, of course, you can explore other options for divorce.

What if I’m the person who doesn’t want the marriage to end?

• Again, I would definitely suggest marriage counseling if you haven’t already done so, and again, you need to be honest with your spouse about your motives. If that is not an option, you may benefit from individual counseling to help you understand what is happening and what you can do.
• A divorce coach who is trained in helping a person deal with the process of divorce, be it through litigation, mediation or collaborative practice, could also be of help.

The bottom line is that mediation will take as long as it takes. I often get a call from one party and then weeks or even months go by before they make the first appointment for a consultation. Sometimes, even more time passes before they tell me they are ready to mediate. Like all facets of mediation, the timing and pace are completely up to the parties.

Are you thinking about divorce, but your spouse is not? Is your spouse talking divorce, but you don’t feel ready?