1. Change your expectations
I have observed more and more that a mediation may be going smoothly but then as soon as there is a bump in the road, a disagreement, one or both parties are ready to throw in the towel. The mediator has some responsibility here. It was after this happened to me several times that I realized that as the mediator, I need to prepare couples for the likelihood that there will be some areas of conflict. It is inevitable. It is inherent in the nature of divorce that parties to a mediation will have different interests and needs. Even if the couple is “amicable” or has the goal of being amicable, they are likely to encounter issues on which they do not agree. The mediator should prepare his or her clients for this happening before it happens and make sure clients understand it is part of the process and encourage them to work through it when it happens.
As clients engaged in mediation, be prepared for the possibility that you will encounter conflict as part of the process. Don’t give up. Whether you are conflict avoidant or not, it is helpful to understand that having a conflict or impasse is part of the process. When it happens, take some time, think about what it is you are disagreeing about. As you think about the conflict outside of the mediation room, you can hopefully see the long view. You can also hopefully evaluate the situation from a rational and pragmatic perspective rather than an emotional one.
This is easier said than done. I see clients ready to give up on mediation all the time as soon as they hit an impasse. However, think about it like you would think about any other challenge. If you are trying to learn how to play an instrument, would you give up if the first time you try to play the instrument you are a miserable failure? It takes time, practice and perseverance.
2. Do not view the other party’s taking an adverse position as their throwing down the gauntlet
I often see this dynamic. The parties are doing pretty well, going through the issues and agreeing on things. But then, one party disagrees and the other spouse treats it as a complete affront. “How dare you disagree with me?” As though disagreeing is not allowed in this process.
It’s not that disagreeing is encouraged, but parties are encouraged to be honest and honestly speak their mind and heart. That is an essential part of the mediation process. I would consider the mediation a complete failure if a party did not speak up and disagree if he or she in fact felt that was necessary. Addressing those issues now makes the work harder now but leads to better agreements. The last thing you want is to be kicking yourself later for not bringing up an issue. Again, expressing your need or position on an issue is essential to the process.
As the mediator it is my job to make sure clients feel comfortable raising issues of conflict, particularly if that client is conflict avoidant. As mediator, the conflict avoidant part of me finds myself hoping that there is no conflict. I have done enough mediations however to know that it is my job to makes couples feel safe enough to be able to discuss their differences. If that is not happening, I am not doing my job. If a couple says, we have an agreement, the mediator’s response could be (with a sigh of relief) great, let’s draft it up! Or, it could be, “Can you help me understand how you arrived at your agreement? The second approach helps the mediator make sure that both parties understand the agreement, are not basing the agreement on false or incorrect information or law and digs down a bit to make sure in fact that the agreement is complete, comprehensive and solid.
3. Attorneys are not the enemy
I always strongly encourage clients to speak with their own attorneys at some point in the mediation. Again, it is my job as mediator to explain clearly what the role of the attorney is in this process. The attorney is not the rubber stamp. The attorney’s role is to provide the client with advice about that spouse’s rights and opinion about what would be a fair settlement for the client. It is likely that the attorney will give the client advice that runs counter, at least in part, to what his or her spouse is offering. Again, it is important to understand that this is an important and crucial part of the process. Each client should have this information and it is then in their control to decide what to do with that information.
What I see sometimes is the following scenario: The parties are at an impasse over an issue. One tool I use at that point is to have the clients consult with an attorney. Maybe one of the parties is being unrealistic or simply is wrong about the law. So, the wife for instance comes back and says I spoke to my attorney and she told me that under the new alimony guidelines I would be entitled to (fill in the number)_ and what you proposed is not fair.” The husband upon hearing this, emails her with a copy to me and says “Ok – we’re done. I can see mediation is not going to work. “ Of course, this is by no means the end of the line for mediation. Again, it is part of the process. The wife is not necessarily going to take the “position” presented by her attorney. It just may be one more step in the negotiation process. The husband perhaps hoped that she would just agree with everything he proposed but how realistic is that? Attorneys are crucial to the process in that they provide information, i.e. legal advice, that I, as the mediator, cannot provide the client. The client is ultimately in control of what he or she does with their attorney’s advice. However, just because the other spouse’s attorney proposed something that you disagree with doesn’t mean the mediation is over. It is simply part of the information gathering and negotiation process.
4. Don’t put off until tomorrow what you can do today
When it comes time to drafting an agreement, there is an impulse on the part of many clients to try to avoid dealing with specific decisions now and leave them to be dealt with in the future. This is most commonly seen in areas involving parenting schedules and college. Sometimes clients are getting along very well and they simply don’t want to “rock the boat”. Sometimes they are philosophically opposed to the courts or “the state” getting involved in their parenting decisions. Sometimes, clients simply want to save money by not taking the time to work out the details. I will have a colloquy with clients explaining to them that while it is certainly possible to leave certain issues to be determined later, the risk they take is that if they have a disagreement in the future, there would be nothing to fall back on until that issue is resolved. It is certainly preferable to do the work now and come up with a parenting plan now, even if it is simply a fallback in the event they don’t agree. Even if couples are amicable now, things change. They may remarry and issues develop between former spouse and new spouse. A party may move and this affects the schedule. Ideally, the parties have at least created a framework. At a minimum, they have included a framework or process for how they will deal with issues if and when they come up in the future. The extra work and time you put in now will, without a doubt, help you in the future.
College is another area that couples often put off to the future. This is understandable particularly if at the time of divorce the children are young. It is hard to predict what the finances of each party is going to be in 10-15 years. Therefore, does it make sense for a spouse to commit, for instance, to paying for ½ of college when they do not know what their respective financial circumstances will be when college comes around. At a minimum, however, clients are encouraged to set out some guidelines for how college will be approached: What is the parties’ understanding and philosophy as to college costs? Are they committed to paying something? Are they committed to paying only for state college tuition? Are they committed to paying up to 1/3 with 1/3 to be paid by the child? Discussing these issues now and including some framework for these decisions in the future will pay dividends in the future when these issues will undoubtedly arise.
Conflict resolution is not necessarily an intuitive process. In fact, to the contrary, it often is counterintuitive and contrary to our out natural fight or flight response. All of the tips above have one thing in common. They require the parties to step back and assess the process and evaluate the mediation process from some distance. Divorce mediation is inherently an emotional process. Emotions will seep into all aspects of the mediation. It is therefore doubly important for couples to take a step back, take a breath and evaluate the process critically. Doing this will help you, as the participating couple, to move through conflict effectively, understand and efficiently use attorneys in the mediation and help create a solid and sustainable agreement for the future.