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.

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, and the other party may not even have come to terms with the concept that the marriage will come to an end. What can each of them do?

When I used to litigate, you needed grounds for divorce, and if the person who wanted the divorce had no grounds and the other person was hesitant to divorce, then the person who wanted the divorce would either have to stay married or be prepared to make a very generous settlement offer. Now, New York has no-fault grounds for divorce, but the parties need to settle all parenting and financial matters between them before a divorce judgment will issue on the grounds of irretrievable breakdown of the marriage.

Similarly, in mediation, you can’t proceed unless both parties agree to the process. That does not mean that I have not seen a client who clearly states from the beginning that he or she doesn’t want the divorce but agrees to mediate because they see the inevitability of divorce and prefer mediation to litigation.

What if your 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 yet. Sometimes, just seeing 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, but you should be sure not to give the other person mixed signals even though you are remaining in the marriage.

What if you’re 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 help you act. 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 first get a call from one party and then weeks or even months go by before they make the first appointment for a consultation. Then more time passes before they tell me they are ready to mediate. Like all facets of mediation, the timing and pace of mediation sessions are completely up to the parties.

One of the most fascinating aspects of mediation is how the process can transform someone who feels reticent or insecure in decision making.

At the initial consultation, clients often say that they are concerned that within the process of mediation they may not “get a good deal” and question if they are 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 client’s ability to feel comfortable with the process and secure that the decisions they make are sound.

I try to reassure clients that within mediation, they can obtain all of the help and guidance they need in order to make decisions that are good for them and your family.

You can have a consultation with an attorney before you begin mediation so you have an idea of your legal rights and responsibilities, as well as discuss terms of settlement you can propose in mediation. You can continue to consult with the attorney during the process if you like or even bring your attorney with you to the mediation if you feel that you may need that support and it is agreeable to your spouse.

You can also meet with a Certified Financial Divorce Planner who is trained to help you make a budget and assemble the financial information you will need to proceed with the divorce, as well as educate you in terms of financial matters so you feel comfortable in the process. This person can also participate in the mediation if it would be helpful and both parties agree.

By way of example, I saw a client as a consulting attorney who was in the process of mediation. She had attended a few sessions, and they had reached tentative agreements on most major points, but the client was unsure and uncomfortable with the terms and her ability to make ends meet, but said she did not voice them in the mediation because her husband had a much stronger personality.

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

I strongly urged to the point of insistence that she only return to mediation with either the Planner or me in the session. I thought that the Planner would be more acceptable to her husband, and she agreed.

Six months later she returned for a consultation with a very different plan and a very different voice. She seemed like a different person from 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 Planner.

We not only discussed what she would propose but how she could propose it in a way that would enable her husband to hear it and consider it rather than dismiss it out of hand.

She told me that the mediator suggested that I attend the next session, and when I asked what she thought of it, I was thrilled 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 the empowering aspect of mediation, that attorney likely would have told her that she should not be in mediation and needed an attorney to advocate on her behalf. She probably would have ended up with a similar settlement, less extensive legal fees of course, but she never would have gained the strength and knowledge of being her own advocate.

Doing what you need to do to empower yourself to make good decisions is something that will be to your benefit not only during the mediation but when it has long since passed.

There are so many issues that a divorcing couple must face–how to tell the children, where will each live, whether or not they can afford to live separately–starting mediation can easily add to the apprehension.

I believe, however, that beginning mediation can actually be a positive step toward gaining control of your changing circumstances. The two of you set the timetable, the agenda and, of course, the outcome.

There are concrete issues that need to be addressed, and as each is discussed and resolved, parties can feel that they are one step closer to moving onto the next stage of their lives. I provide my clients with a checklist of issues which need to be addressed by them in a Separation Agreement, and to the extent that their discussing them on their own is helpful, then by all means I encourage them to do so. For example, most couples will discuss their ideas on a parenting plan before they begin mediation.

In terms of financial issues, I suggest that clients each begin thinking in terms of a budget for their likely future circumstances. Will they be living in a rental, staying in the house or buying a new home? Parties to a mediation should have an idea of what those costs will be so they can properly draft a budget.

It is also helpful to get the financial documents required to have a meaningful discussion on the financial aspect of your divorce in place before beginning the mediation, such as income tax returns, current pay stubs, bank and investment account statements, retirement account statements and the like. The more prepared a couple is for the mediation, the less time and money will be spent in the mediation estimating income and assets.

Like many of my colleagues, I use a financial software program which permits clients to download a client version of the program at no cost. I ask clients to enter their financial information in the program and then send it to me. I can then print out their budgets and lists of assets and liabilities. They can then make changes and revise their budgets as necessary.

Because cost is always a factor for couples facing divorce, the mediation will be more efficient if all of the information is available at the time that you are having your discussions, so it makes sense to be prepared.

Even though mediation is a process in which the parties themselves make an agreement that works best for them and their family, I have yet to meet clients who are not interested in or choose not to be informed as to what the law provides.

As a mediator, I think it is important for clients to know what the law provides and what might happen if a court were to determine the outcome of their divorce because I feel it is impossible for them to waive a right without knowing what that right may be. The only problem is that there is a plethora of cases in which opposing attorneys are fighting over what the law provides, so usually I give my clients the law as a range of possibilities or let them know what might be a likely outcome but stress the uncertainties that are inherent in the court process.

Of course, I do not and cannot give legal advice to either or both of the parties since that is well beyond the role of a mediator. Instead, I provide objective legal information so they can make decisions knowing the impact of the law.

I will then emphasize to them that they are free to explore many other options to reach a resolution that is particularly suited to them. I consider the application of the likely outcome if they were to go to court as but one of the choices before them, and in my experience, clients tend to achieve a result that is similar to that which may occur in court but will have been tweaked to meet their particular needs. Moreover, if a client chooses to waive what would be considered a right under the law, I will explore the reason why to insure that they are doing so with full understanding of his or her right while respecting their right to determine the outcome of their divorce.

As a mediator, I do not insist that my clients use review or consulting attorneys as a matter of course. I feel that the self-determination of the clients in mediation is paramount and that this extends to the decision of whether or not he or she retains an attorney. However, I do recommend that clients seek the advice of an attorney at the very least before signing a Separation Agreement because I think that it is important for clients to get the kind of legal advice that a mediator is not permitted to give.

Also, on very rare occasions, I will insist that a client consult with an attorney if I feel that the person is not understanding the ramifications of an agreement or if I feel that the validity of the agreement might be in question if the person does not have independent counsel.

For the most part, however, I think that if a party to a mediation understands the terms of the agreement, his or her rights under the law and the consequences of executing the agreement, the choice of whether or not to retain counsel lies with the client.

With the drastic cuts in funding to the Courts in New York State, what had been a long, expensive and painful process in divorce litigation is likely to be even longer, more expensive and more painful with the budget cuts. These cuts will result in lesser hours for the Courts so the resources will stretched even further, likely with less Court personnel as well.

Now, more than ever, the progress of a divorce will not be within your control should you decide to go to Court. It makes even more sense to mediate your matter so you gain control not only of the process itself but, even more significantly, of the outcome. This means that the agreement that is reached will be one that you and your spouse decide will work best for your family.

While, sadly, some cases must be litigated, they are few compared to the cases that are litigated. Give some consideration to whether you and your spouse can mediate your divorce. This will work out best not just for you both but for your children as well and will save you time and unnecessary expense.

You may be aware that New York State adopted a statute in October regarding the calculation of temporary maintenance at the same time that the State enacted the no-fault ground for divorce. The statute provides a formula for calculating an award of temporary maintenance in the event that a litigant in a divorce action brings a motion seeking an award of support during the pendency of the action (temporary maintenance).

So, what does this mean in mediation? That is up for debate in the mediation community. Since it is an award of temporary maintenance and it is by the statute limited to court actions, it technically has no effect. In actuality, couples in mediation will either have a plan already in place for the payment of expenses during the mediation or will discuss it and reach agreement on what will be paid by whom until such time as a written separation agreement is signed. This agreement may or may not be in writing.However, I am of the opinion that knowledge of what the law provides is a good thing, even if it may not strictly apply. My policy is to speak to clients about what it means and demonstrate what the amount would be, but as of yet, I have not had clients who chose to have it apply, either temporarily or permanently.

It is very difficult in New York State to be successful in a Court action to set aside an agreement for the reason that if it was easy to change separation agreements, people would not spend the time and the money to enter into them. This would then result in more litigation, which is not what the Courts want. Among factors that a Court will consider is whether or not an agreement is unconscionable or if one of the parties was unduly influenced. The standards are the same whether your agreement was reached in mediation or through attorney negotiation. If you mediate, however, whether or not a party has review attorneys while in and of itself is not determinative, it is a factor to be considered, especially in agreements drafted by a mediator attorney. So, it is recommended that couples have review attorneys.

Some people are afraid that if they do not hire a lawyer, they will not receive everything to which they are entitled or that they will end up with an unfair agreement. That need not be a concern. In addition to using an attorney to review your agreement at the end of the mediation, parties in mediation may see an attorney both before and during mediation, and in some cases it is beneficial for a party to come to mediation with an attorney. In my mediations, I always tell my clients from the beginning that they can consult with a lawyer and have suggested it during the process if I thought it would benefit the party. However, most couples decide to wait until they have compelted the mediation to retain an attorney.