I can’t tell you how many times I receive phone calls from people seeking an uncontested divorce in Maryland, DC or Virginia, but don’t know how to get their spouse to participate in mediation. Maybe the spouse is too angry or hurt or skeptical to try mediation. Maybe they already have a lawyer who advises against it. Here’s some advice I give these folks.
First, see if you can find out why your spouse objects to mediation. The more you understand their concerns, the better you can address them.
Here are 7 common objections to mediation - and responses that may help bring your spouse to the negotiating table.
- I don’t want the divorce, so why should I mediate?
The fact is that it’s possible to obtain a divorce in Maryland, DC and Virginia even if one spouse wants to stay married. If you’re not the one who wants the divorce, mediation will give you a chance to process the impact of separating, gain clarity about your needs going forward and give you some control over the outcome. Developing a mutual plan for physical separation, managing finances and parenting - even temporarily - can be reassuring at a vulnerable time.
- I don’t want therapy.
Mediation is not marriage counseling. Mediation is a non-adversarial process for addressing the financial, parenting and legal issues of your divorce. Your mediator may coach you in how to better communicate with one another in order to help you maximize the potential for mutual problem-solving. Good communication also helps pave the way for successful co-parenting (and helps in other areas of life too).
- We can barely talk to one another let alone reach agreements.
If people going through divorce could talk constructively, then there wouldn’t be a need for divorce lawyers and mediators! In my experience, however, people are able to talk and even reach agreements with help. An experienced, professional mediator can help you avoid “positional bargaining,” which leads to impasse, and instead, uncover mutual interests and ways to meet both spouses' needs and those of your children.
- I need someone who will protect my rights.
An experienced mediator will seamlessly incorporate an educational component into the mediation so that both spouses can have confidence in their knowledge and know where to get additional information as needed. The educational value of mediation puts parties on equal footing and is indispensable to creating a level playing field. The mediator may recommend, or parties may choose to consult with attorneys in the process. While less common, both spouses may agree to have attorneys present in mediation. You and your spouse will be able to weigh legal advice along with all the other information that will help you meet the needs of all family members.
- Our finances are too complex for mediation.
An experienced mediator has the knowledge base to help most people clarify and understand their financial situation. A professional divorce mediator will be proficient at using financial divorce software that can help you explore ways to achieve an equitable division of assets and consider tax consequences. Regardless of whether you’re working with a mediator or a lawyer, there are times when it is helpful to bring additional professionals into the process, such as a business valuation expert, a CPA or a financial adviser.
- I’m afraid that you’ll hide assets.
Whether you’re using litigation or mediation, there are no guarantees that your spouse will disclose all assets. You may choose to hire a forensic accountant, but even that won’t guarantee full disclosure. If it is later discovered that one spouse was hiding assets, the innocent spouse can pursue legal action for fraud.
- My lawyer told me not to.
These days, most lawyers recognize the value of mediation and recommend it to their clients. Family courts in Maryland, DC and Virginia even require mediation before going to trial. So if your spouse’s lawyer is advising him or her not to mediate, there is a good chance you are in for a long, painful and very expensive process. Preparing a case for litigation actually escalates and entrenches conflict. Litigated divorces can take 3 or more years, consume the family’s wealth and put enormous strain on all of the family relationships. Invite your spouse to ask his or her lawyer this question: “Will you guarantee in writing that I will get a better outcome with you than I would in mediation?” I’ve never seen a lawyer agree to do that.
If your spouse doesn’t feel ready to begin mediating a divorce settlement, offer to proceed at his or her pace, not at yours. If your spouse is concerned about your selection of a mediator, invite him or her to choose one. If your spouse doesn’t want to mediate simply because the idea is yours, they may be open to information from a neutral source. Here are some of the excellent resources out there:
Blog on Navigating Separation & Divorce (that’s mine!)