As an experienced mediator, in divorce mediation I aim to promote constructive communication between the participants, in an effort to help them move toward resolution.
Effective communication can often be difficult for a divorcing couple. It’s ironic—two people, whose marriage may be ending because they couldn’t communicate well, are now faced with the challenge of talking through the details of their divorce.
I’ve benefited over the years from hundreds of hours of continuing education. Much of that time has focused on how we, as divorce and family mediators, can help our clients to have the best possible conversations in light of the hard circumstances in which they find themselves. I’ve added many tools, and my experience in working on hundreds of cases has provided me with personal insights into what can work best to promote positive dialogue.
Here are a few suggestions to foster a more productive approach to reaching agreement:
When you choose divorce and family mediation, you are opting into a process where a professionally trained neutral mediator will be there to help you follow suggestions like these for constructive dialogue. And you can certainly apply these to any difficult conversation on your own.
In any life transition, especially separation and divorce, you will be faced with the daunting challenge of making important decisions. For many, it’s hard to think ahead, to be clear about how to move forward. And yet, how decisions are made, in this time when it’s normal to feel uncertain and vulnerable, is critically important to set the stage for the best next steps in your life journey.
Structuring the Discussion
As a divorce mediator, I want my clients to be aware of and understand the full scope of topics that will be discussed in our mediation sessions. All clients are provided with an extensive outline of divorce mediation topics, which is also available here.
Introducing structure into our conversations can help us to stay focused. You may also find that some of these topics are easy to discuss on your own, saving mediation time and expense. As a mediator, I support and encourage you to work together on your own, as long as your style of communication and negotiation does not create unnecessary conflict. I always advise clients to avoid discussions that risk a setback in the overall progress of mediation. And when in doubt, it’s usually best to save the conversation for our mediation sessions, when I can help, as a neutral third party, to foster a positive climate in which this hard work of decision-making can take place.
Goals for the Process
In divorce mediation, I am committed to two primary goals that relate to your decision-making process:
While it can be very difficult to get two people to agree on what is “fair,” I find it easier for each of you to make your own determination about what is “acceptable.”
Mutually Acceptable Decision-Making
In most successful divorce mediations, the outcome consists of many decisions, each of which is seen by both spouses as being acceptable. I typically ask each of you, “Are you okay with this?” or “Can you live with this?” If the answer is “Yes,” what you are telling me is that this particular outcome (decision) is acceptable to you. If you both answer in the affirmative, we have achieved the goal of a mutually acceptable decision.
Contrast this to a conversation about fairness. Many clients will tell me that their goal is “for everything to be fair,” or “to be fair to my partner,” or “to get what is fair.” The problem with this approach is that “fair” means different things to different people. While it can be very difficult to get two people to agree on what is “fair,” I find it easier for each of you to make your own determination about what is “acceptable.” This also acknowledges a reality that, in any negotiation, there will typically be some degree of back-and-forth dialogue and a level of compromise to achieve the ultimate goal—meeting your underlying needs and interests, as well as those of your children.
When I discuss the concept of “informed decision making,” I point to two key ingredients.
Legal Information: First, divorce mediation is a different (and, in my opinion, better) process than litigating a divorce in the court system, because of the flexibility and creativity that are offered to you in mediation. At the same time, I believe that it’s important for my clients to be aware of the laws that would apply to their situation if a judge had to make the final decision because clients and attorneys were not able to agree. If you have an attorney assisting you in the mediation process, or if you consulted with an attorney before coming into mediation, you may already have this information. If you, like many clients, are participating in mediation without attorneys, I will provide you with basic information about the laws pertaining to divorce proceedings. I always tell my clients that it’s up to them to decide how to use this information in coming to their agreed-upon decisions.
Financial Disclosure: Secondly, the end of a marriage marks the end of an economic partnership. While a marriage is comprised of a complex series of relationships, it’s essential to stay focused on what it means to unwind the finances of a marriage. In some respects, this is the same as two business partners who decide to end their business relationship.
See an earlier posted discussion of the kinds of relationships addressed within mediation.
So when we are discussing how to end a marital financial partnership, we are looking at how assets acquired and debts incurred during the marriage will be divided. And we are also looking at what the needs may be to sustain two households in the future. Full financial disclosure of assets, debts and income is the process that allows both of you to have equal access to this essential information.
The Best Framework for Discussion
The divorce mediation process supports informed decision-making, by making sure that both spouses have legal and financial information. This framework for discussions then enables and empowers you to come to decisions that you both feel are acceptable, creating a guidepost for gaining more clarity about how you will emerge from this critical life transition.
Accepting that a marriage is ending can be very challenging, and the array of emotions that can prevent the final acceptance is complex and constantly changing. In divorce, the acceptance of financial realities is particularly difficult. Many clients just don’t want to acknowledge it, yet some of the most important decisions in a divorce settlement are financial in nature. After all, our basic survival needs are met by paying for housing, food and other necessities.
While many clients don’t want to acknowledge it, some of the most important decisions in a divorce settlement are financial in nature.
As a divorce mediator in both Chicago and New York state, I can think back to a time where I encountered a couple where the wife, desiring a new beginning, had separated from the husband. The husband, surprised and angry that his more than 25-year marriage was ending, was experiencing a lot of difficulty with the idea of sharing the couple’s assets, including a rather large pension. The wife was in a better place than the husband on an emotional level, but she had not considered the implications of the financial decisions she would face in her future.
The uncertainty associated with divorce extends to future expectations regarding financial security. It is especially important for couples ending a longer-term marriage to consider the implications of their decisions on their retirements.
There is a risk, as mediation begins, that a spouse who has not accepted the emotional reality that the marriage is ending is also disconnected from the financial reality as well. Whether obstructed by anger, fear, denial or depression, a lack of focus can negatively impact informed decision making.
In particular, I have found that one or both spouses may need time or more information to process the possibility or inevitability of their new financial reality. This reality can include the following scenarios:
When couples choose to use divorce mediation, they have the opportunity to take the time required to communicate and plan for their new financial circumstances. The mediation process allows for as much research and time as needed, the exploration of options, and an agreed-upon outcome that will often lead to the acceptance of a new reality created by both of you.
And in the case of the couple I wrote about above, I encouraged them to take time to process and consider their future needs. Upon their return to mediation several months later, they were more certain of their personal requirements and of their mutual desire to make their decisions in a mediation setting where they had control over the outcome.
As a Chicago divorce mediator, the initial consultation is often my first contact with one of the spouses. Typically, I’ll receive a call from the husband or wife, and we agree to meet (these days) by video conference. The one who calls me is often, but not always, the “initiator,” meaning that that spouse is taking the first step in planning a future apart.
When both spouses are ready to make decisions that center around separation—co-parenting, dividing property, financial support—we can begin a focused conversation with the freedom and creativity to develop solutions.
But what about when the broad vision of the future is not clear to both? In other words, how can mediation work when one or both of you may not be committed to ending the marriage?
As a divorce mediator, I am dedicated to client self-determination. Both of you deserve to have the most appropriate conversation for your circumstances. If I sense that one or both of you is not “on board” with ending the marriage, I will propose to open that conversation.
The term that is used for this process is “discernment.” The word “discern” has several definitions, including:
If you and your spouse are unsure where your marriage stands now or where it is going, the mediation process can help you communicate and recognize whether to continue or end the relationship.
So for the couple where the individuals are not sure where their marriage stands now or where it is going, the mediation process can help you both to communicate with each other and allow you to recognize and understand whether to continue or end your relationship.
As a family and divorce mediator, I dedicate my work to the clients’ rights to make their own choices. Having a consultation doesn’t mean you are choosing to end your marriage, unless that is what you both want to do. I will be there with you wherever you are and wherever you are going.
If you decide that a “discernment” process will be helpful for both of you, we’ll start there. If you decide that your efforts are best focused on staying married, I will offer to either assist you in creating a mediation process that will allow you to have a conversation about how to plan for staying married, with an emphasis on better communication and understanding, or refer you to a trained professional marriage counselor or therapist.
Rest assured, when considering the end of a marriage, the mediation process supports you to make the important decisions to move on with your lives. And you have the option to take the time you need to plan your next step after mediation is completed—ranging from taking no legal action to proceeding with a divorce.
“Where are we?” may be the most important first question for you to answer. The mediation process offers the flexibility to respond to your needs, whatever your answer may be.
As a family and divorce mediator in both Chicago and New York state, I have an ethical obligation to mediate impartially. Therefore, my actions and how my clients perceive them must not give any special favoritism to either spouse. Mediators constantly struggle with neutrality, as there can be external factors (the behavior or beliefs of a client) or internal ones (our own beliefs) that challenge us in our efforts to be neutral.
Many of my divorce mediations begin amidst the emotional unrest of my clients and their uncertainty regarding the future. As a mediator, I strive to support the couples I work with who are experiencing the stress of transition without compromising my neutrality. In fact, this support of the clients is an essential component of my mediation process.
There is a tendency for one or both spouses to interpret being stuck on one or two issues as a sign that resolution cannot be achieved. Part of my role is to remind them that many other decisions have already been made that satisfy them both.
In divorce mediation, positive reinforcement is the fuel to sustain the momentum of the process.
As a participant spouse, progress may be hard to see; but, as a neutral facilitator, it’s much easier to track mediation accomplishments. Positive reinforcement is the fuel to sustain the momentum of divorce mediation. I call it “being a cheerleader for my clients.”
In a more nuanced approach, I may sense that one spouse needs more support than the other. In a past mediation, the wife was having great difficulty focusing because she was being challenged emotionally. I met with both the wife and husband separately. In these meetings the wife had the freedom to “vent,” away from her husband, and became ready to resume a serious conversation. The husband was able to meet his need to continue a mediation process that may have otherwise terminated. As the mediation progressed, I sensed an increase in the trust both had in what I was doing.
Even when my clients are in the same room together with me and there are power issues, I may focus on the spouse who needs the support the most while also engaging the other spouse. It’s like lifting unequal weights placed in each hand—I use more energy with one hand than the other but both hands are working.
The neutrality of the mediator is a cornerstone of the divorce mediation process—but so is the creation of a safe and balanced environment. Actively supporting the needs of clients who are struggling with uncertainty and transition helps to provide the environment for meaningful conversations and successful outcomes.
In our house, we keep a shopping list for the next person who goes out to buy groceries. I’m not the best at putting things on that list, and so when my wife has returned from shopping and something I needed wasn’t purchased, I have only myself to blame—how could I expect her to read my mind about something I wanted?
When I am meeting with clients in divorce mediation, I encourage them to make their own list of personal needs as they plan their futures. More importantly, I urge each to be certain to speak up about any specific request that will require a spouse’s agreement.
When divorce mediation ends, a legally binding document spelling out all agreements on parenting, division of property, child support, spousal support and related financial issues will be prepared and signed. This is a final agreement. It can only be changed if both agree to do so, which may or may not happen, depending on how each feels about the proposed change.
Don’t be the person who forgot to ask. Your spouse is probably not a mind reader, and neither is your mediator.
I want my clients to get it right the first time—and part of getting it right is knowing what you want and asking for it. I’m not saying that you’ll always get everything you ask for, but I do know that you probably won’t get anything that you don’t ask for.
Don’t be the person who forgot to ask. Your spouse is probably not a mind reader, and neither is your mediator.
Here are some examples of needs you may want to include on your personal list:
I am a family and divorce mediator. I also play tennis. In fact, I play a lot of tennis—three to four times a week (when not sheltered at home).
So why would I write about tennis and mediation in the same article?
The answer is simple—playing tennis and participating in the divorce mediation process require similar skills.
1. Focus Under Stress
A good tennis player maintains concentration in the face of physical stress—running down an opponent’s good shot, returning a blazing fast serve. This requires immense concentration.
Your ability to focus will allow for the best possible decisions to guide your future.
In divorce mediation, under the emotional stress of a life in transition, your ability to focus will allow you to make the best possible decisions for your future. A skilled divorce mediator creates a safe space to promote concentration and focus.
2. Confidence and Control
The best tennis players are able to play with confidence and control their minds to achieve the concentration and focus that are necessary to win matches. As an intermediate player, when things aren’t going my way, it’s easy to lose confidence, and I often can feel the match getting away from me.
In divorce mediation, it is easy to be distracted by uncertainty, fear, anger and sadness. As a divorce mediator, I strive to bring a positive attitude and energy to share with my clients to help them feel as comfortable as possible. I aim to promote their self-confidence and belief in themselves, thereby fostering their ability to process information and make appropriate decisions.
After two hours of tennis, win or lose, I look back on the time I’ve spent and feel rewarded by the exercise I’ve completed and my efforts to do my best. I am filled with a sense of calm and relaxation. At the same time, I’m aware of how dripping wet I am from the hard work of running all over the tennis court!
In divorce mediation, you get to feel the accomplishment of having participated in creating a plan for your future, a future that you and your spouse have decided for yourselves. You have transformed uncertainty into a clearer picture of what lies ahead. And like a tennis player finishing a match, you’re likely to be tired, because after all, it was hard work!
One last thought: in my best tennis matches, I’ve felt that I’ve worked harder than my opponent. In most successful divorce mediations, my clients have worked harder than I, since it is their lives and futures that are at stake.
Any divorce mediator or collaborative divorce professional who says that he or she is able to bring every case to a complete resolution is either dreaming or misrepresenting a performance record. The process is not perfect, and you have to expect bumps along the road. It’s extremely important not to give up hope. If every couple that felt their case was hopeless in any moment then chose to end mediation or collaboration, there would be a much lower rate of resolution. And there would be a lot more dissatisfied and frustrated clients.
As a mediator, when I hear the word “hopeless”, I think instead of the word “hope.” I remain hopeful that I can keep my clients engaged in a conversation that will help them to make mutually acceptable decisions.
Couples begin the mediation (or collaborative) process as their marriages are ending. Emotions are often running high. Just as one or both are thinking about how they were unsuccessful in marriage, they also may be convinced that they will be unsuccessful in coming to agreement on the decisions required to end their marriage and get on with their lives. Many choose to use lawyers to resolve these issues on their behalf rather than engage each other in conversation.
In several recent cases, my mediation clients were skeptical about being able to come to a full agreement, and, in at least one session, each couple thought their situation hopeless. And yet, in all of these cases, the clients succeeded in overcoming the challenges and reaching an agreement.
When faced with a difficult issue, many clients lose sight of the fact that they may have already made terrific progress on many other issues.
The divorce mediation process involves many decisions covering a range of topics. In some cases, agreement may seem elusive. When faced with a difficult issue, many clients lose sight of the fact that they may have already
]made terrific progress on many other issues. Or they may have narrowed their differences so that they have come closer to reaching agreement. In either case, I’ll be the first one to point out their accomplishments. I am not only a cheerleader for the mediation process itself, I am also cheering for the families in the process.
Here are some tips for seeing hope when feeling hopeless:
The end of a marriage and the underlying uncertainty and challenge to make agreements can lead to feelings of hopelessness. Yet, using divorce mediation or the collaborative divorce process may very well give you the best chance to overcome hopelessness and create hope for moving forward.
Human relationships take on many forms. When we first meet a new person, we are acquaintances. Perhaps we later become friends. Maybe we have a professional relationship, as colleagues, customers, contractors, consultants, you name it. We could even go into business together as partners or co-owners. Or we could start dating, get married and have children together.
When a married couple decides that they are going to separate and possibly divorce, it’s important to identify each layer of their association and determine how the decisions being made correspond to the different relationships between the spouses. Let’s call this “a relationship layer cake.”
When the adversarial approach of our court-based legal system is avoided in favor of a more respectful and dignified mediation divorce process, the marital contract can be ended while preserving those relationships that continue to connect both spouses.
Separation and divorce, at a minimum, involve an “unwinding” of an economic partnership that is recognized in legal terms as beginning on the date of marriage. In a short, childless marriage, the decisions being made by my clients could be confined to the division of their marital property, leaving them to go their separate ways with no further personal contact. They may have no interest in remaining friends or being otherwise associated with each other.
But more often, especially in marriages of more than a few years and that include children, the decisions can cross many layers of relationship. Co-parenting and the development of a Parenting Plan acknowledge what we all know as parents—we will be the parents of our children for the rest of our lives. And so from here we can understand that our children will continue to have two parents, hopefully long into their adult years.
When the adversarial approach of our court-based legal system is avoided in favor of a more respectful and dignified mediation or collaborative divorce process, the marital contract can be ended while preserving those relationships that continue to connect both spouses, whether they be:
• personal (still friendly or at least cordial but no longer married).
In the kitchen of mediation, you can hopefully take the “marriage layer” off your cake while baking a better tasting new confection for the future.
At its best, marriage is a partnership that nourishes the individuality of each to blossom into fully self-expressed humanness. A marriage that allows for growth while retaining underlying connection and intimacy can be very powerful.
And yet, in some marriages, people often work toward their personal evolution at different rates or not at all. Sadly, this presents challenges that may be insurmountable. Trying to meet the expectations of a spouse that don’t match who we are can prevent us from becoming who we want to be.
Regardless of our religious or spiritual beliefs, most all traditions point to the need for the individual to grow. As with nature, without growth we wither and die. Personal growth helps us to thrive.
While the painful circumstances of a marriage that is ending pose a personal challenge, they also offer a great opportunity for growth.
While the painful circumstances of a marriage that is ending pose a personal challenge, they also offer a great opportunity for growth. Instead of feeling the pressure to meet the expectations of a spouse, we can move toward discovering who we really are and what’s possible for us. For many, this can be a profound experience that redirects our focus into the future.
Maybe it involves participating in a sport that the ex-spouse had no interest in. Or a pursuit in the arts, joining new groups or meeting new friends. Sometimes it may involve taking a risk that would not have been tolerated in the marriage.
The end of a marriage is the beginning of a new chapter in the journey of life—recognizing the freedom to live on our own terms may just be the first step in continuing to grow to our full potential.