Each year, on average, I participate in 40-60 hours of continuing education programs, which include seminars, workshops and conferences focused on mediation practice.
 
I find these learning experiences to be enriching, as there is encouragement to expand the tools and strategies mediators can bring to helping others. At the end of each event, I consider what I can take from what I’ve learned to help me think more carefully about what I do as a mediator and as a financial neutral and how I can be a better version of myself, professionally.
 
The most recent workshop I attended was particularly thought provoking, as it gave me a new way of looking at conflict—its causes and the negative behaviors associated with it. At root, we experience conflict because something that matters to us is being challenged. A natural reaction is defensive behavior. At worst, conflict is a cycle of such behavior that creates an impenetrable wall.
 
As I think about how this applies to my work, I see that the divorce experience poses a challenge to both spouses. Divorce often affects much of what matters to you—your relationship to your children, your financial stability, your self-image in the wake of your failed marriage, just to name a few. These challenges, also described as threats, can create fear, anger and negative behavior.
 
From this place of validation of what is being experienced in the midst of conflict, we expand the discussion to one of hope. Most simply, I ask you to think about what can be better in the future if you and your spouse use mediation to have a productive conversation about what concerns you both and what the options are to create that better future.
 
As a mediator, I offer the opportunity to explore these challenges, to help each of you acknowledge them, to ask about these concerns in a way that addresses the fundamental question about what matters to you most. From this place of validation of what is being experienced in the midst of conflict, we expand the discussion to one of hope. Most simply, I ask you to think about what can be better in the future if you and your spouse use mediation to have a productive conversation about what concerns you both and what the options are to create that better future.
 
I’ve often described divorce mediation as a series of conversations that build a bridge from the marriage you are ending to your separate yet interconnected futures. That same bridge can bring you from a place where you feel that what you value the most is being threatened to a place where you can both experience something better—accomplished through meaningful dialogue.

Every mediation case is different. I sometimes refer to my cases as snowflakes, as no two are the same. There can be common themes, and yet, since our brains are all wired differently and mediation involves at least two participants, each encounter is unique.
 
For some, differences between individuals can be exciting, inspiring, intriguing—for others, those differences are frustrating, perplexing and downright annoying.
 
A relationship may start on the basis of similarities in behavior and/or interests and then face the challenge of changes in the individuals. A common phrase is, “You’re not the same as when I met you,” or “I don’t know who you are any more.” This can be a predictor of failure.
 
In a marriage, effort by one spouse to manipulate a “changed” partner into becoming who she/he was in the past inevitably causes resentment. Such attempts are usually unsuccessful.
 
In other situations, partners attempt to understand and accept the changes in each other. Clearly, this is no easy task. Some adapt better than others. Effort by one spouse to manipulate a “changed” partner into becoming who she/he was in the past inevitably causes resentment. Such attempts are usually unsuccessful.
 
When I experience this dynamic in divorce mediation, it’s difficult, as I often feel the friction when one spouse is not meeting the expectations of the other. Maybe it’s about one of them wanting to move faster and get the process over with, while the other is taking her/his time to make sure everything is thoroughly considered so the individual can make the best decisions under the circumstances.
 
Recently, I was working with a couple where one spouse was able to articulate specific requests and proposals, while her husband was not prepared to offer any requests of his own; he needed more data to analyze. The tension between them escalated. In my practice, I tend to explain how normal this kind of situation is. I speak optimistically: once there is time for thoughtful consideration, progress will hopefully follow.
 
While an intact marriage may struggle with the necessary adaptation to changing circumstances of individual priorities and behavior, perhaps the saving grace for a divorcing couple is that understanding and accepting the change in one’s soon-to-be ex-partner are gestures that can be made with the knowledge that you soon will no longer be married to that person!

Over the years, most of the divorces I have mediated have ended with complete agreement between spouses, allowing them to build their own plan for moving forward with their separate lives.
 
Generally, clients who self-refer to mediation are looking for a process that will maintain civil and respectful conversations, utilizing the skills of a neutral third party who has an understanding of what elements need to be included in their plan.
 
Perhaps one reason for the high rate of agreement is that most of my clients come to me voluntarily—not referred by the court system. Generally, clients who self-refer to mediation are looking for a process that will maintain civil and respectful conversations, utilizing the skills of a neutral third party who has an understanding of what elements need to be included in their plan. That’s not to say that mediation is easy, as reaching agreements often requires a couple to look inward at their own needs, acknowledge the needs of the other, and develop options that have the best chance of meeting both sets of requirements.
 
The end of a “successful” mediation can be filled with a range of emotions. For clients, there is often a sense of accomplishment, sometimes to their own surprise. While their marriage did not work, they were able to team up to make their own decisions for how to co-parent their children, allocate their assets and debts, and create the best possibilities for two sustainable households. At the same time, as the cloud of uncertainty has lifted, replaced by greater clarity about the future, the reality that the couple is approaching the “official” end of their marriage carries its own set of feelings and reactions, including a need to accept both loss and failure. These are competing emotions, having resolved the issues of divorce but now having to face the fact that the marriage has indeed ended.
 
From my chair, I always attempt to put the most positive face on what has happened in mediation. While a mediator’s skills—structuring an effective process and facilitating difficult conversations—play an important role in helping a couple meet their goals for coming to mediation, the real credit belongs to them. After all, mediation requires the courage to try a process that involves total transparency and take responsibility for doing the work of gathering information, engaging in challenging conversations with a soon to be ex-spouse, and making choices about the future.
 
And so along with giving my clients credit for what they have been able to achieve in mediation, I close every mediation with gratitude that they trusted me to play a role in their transition. Divorce is an experience that most want to forget so they can move on, but, for me, the honor of making a difference is unforgettable.

I am thinking about the two-year-old daughter of current divorce mediation clients. The child was hospitalized with pneumonia, something I only know only because the couple had to cancel their mediation appointment this week—which was totally understandable under the circumstances. I am keeping this child and her parents in my prayers for a return to health.
 
The promise of mediation— an environment that allows partners to uncouple their marriage while maximizing the probability that they can still effectively co-parent with respect and support for each other
 
As parents, we face many challenges involving our children, including their physical and mental health. For this couple, their choice to mediate their divorce arose from their commitment to the wellbeing of their child, to plan for the end of a marriage while also determining the best way to co-parent their child in separate households. As I read the text message about their child, seeing that they were both at the hospital, I knew that they were supporting each other as parents in their care and concern for their daughter. This reinforces for me the promise of mediation—an environment that allows partners to uncouple their marriage while maximizing the probability that they can still effectively co-parent with respect and support for each other.
 
It is entirely possible that, even if this couple, instead of coming to mediation, had decided to engage in a legal battle over their daughter, they would have dropped their swords and shields when faced with a crisis involving her well being. Thankfully, we’ll never need to know. I can only hope that, by choosing mediation, it’s been easier for them to work together as a team.

I recently read a thoughtful essay in the New York Times, authored by Lara Bazelon, entitled “Divorce Can Be an Act of Radical Self-Love.”
 
Ms. Bazelon’s observations of her own divorce remind me of what I hear from spouses who come to divorce mediation all the time, that they still feel connected (or even still love) their soon to be ex-partner. Yet, in their mind, the marriage is not working, as self-reflection uncovers a lack of happiness and fulfillment. 
 
The author summarizes a re-evaluation of her own priorities in the following words, “I divorced my husband not because I didn’t love him. I divorced him because I loved myself even more.” 
 
“Divorce is painful and heartbreaking. But it can also be liberating, pointing the way toward a different life that leaves everyone better off, including the children.” 
—Lara Bazelon
 
The process of divorce, whether through a mediator, attorney or judge, is the building of a bridge from the present to the future. Another observation from Bazelon rings true from my experience working with divorcing couples: “Divorce is painful and heartbreaking. But it can also be liberating, pointing the way toward a different life that leaves everyone better off, including the children.”
 
While the author of these words did not disclose the process she and her partner used to end their marriage, it would seem reasonable to conclude that they took steps to end the marriage with dignity and respect, to preserve all that was good about their relationship, and channel that positive energy toward co-parenting their children and maintaining a strong personal connection to each other.
 
It is typical and understandable for a spouse who has taken the lead to end the marriage to do so in order to advance personal interests. However, as couples transition through divorce, it’s important to recognize that a truly successful outcome requires understanding both one’s own interests and also those of the other spouse and the children.  
 
Mediation offers the best chance for self-love to be balanced with the reality that one person is not making all the decisions, even if one spouse is the first one looking to construct a personal bridge into the future. That bridge needs to be wide enough to carry the whole family safely across. 
 
The article by Lara Bazelon cited above appeared in the New York Times on September 20, 2021. You may need an account with NYT to access the article; here is the link.

I have recently read discussions that refer to mediation as being adversarial. I disagree with this characterization of mediation as an adversarial process. To me, the term adversarial describes conflict, where hostility and opposition to hearing others’ viewpoint stand out.  
 
In my mediation practice, while I concede that spouses who are divorcing are often not in agreement on their plan for moving forward, my efforts from the start focus on creating an environment to promote constructive communication, empowering each spouse to use her/his voice and speak to personal needs and interests. I want the space in which we are meeting, whether in person or remotely, to offer comfort and safety.
 
Through that lens, where I am using my facilitative skills to promote problem solving, I cannot picture mediation as being adversarial. Spouses are involved in a serious conversation, concentrated on creating specific plans for ending their marriage. Is that adversarial? I hope not.
 
In fairness, some come to mediation through a different path. Clients, after being embroiled in the litigation process, may be referred by the court system to mediation.  Essentially, the couple is being asked to forget about the litigation experience, which is quite often polarizing, and shift into problem-solving mode. And in many cases, litigating attorneys may themselves participate in sessions with the mediators, still maintaining the posture of being zealous advocates for their clients.  
 
Contrast these two circumstances: 
 
Clients who come into mediation on their own, perhaps bringing attorneys who understand and support the process, arrive with a goal of seeing our work as solving a human problem and meeting human needs.
 
Clients who come into mediation on their own, perhaps bringing attorneys who understand and support the process (a practice I wholeheartedly endorse), arrive with a goal of seeing our work as solving a human problem and meeting human needs.
 
On the other hand, clients who come into mediation from litigation, especially when ordered by a judge to do so, and particularly when litigating attorneys are involved, may see their divorce as a legal problem to be solved. This may take the form of negotiating over the subjectivity of the law and who has the “better case,” instead of meeting the human needs of the family that is facing a significant life transition.
 
Perhaps the message here is that, the sooner a couple determines that mediation is right for them, the more likely that process will be experienced as non-adversarial. 
 

For almost everyone, divorce is very difficult, even when both spouses know the marriage needs to end and think they can agree on how to move forward. There is often a sense of loss, maybe even failure, and self-examination—what went wrong?

When there is not a shared sense that the marriage is over, one of you may feel ready while the other may not feel prepared or equipped to engage in the serious process of determining what separate futures will look like. It may also be that, as the mediation process unfolds, one is wishing it would end (with an agreement and closure) while the other is still processing. What seems to one of you as a delay is a cry by the other for more time to make important decisions.

As the mediator who will guide the process, I aim to acknowledge the goal of the spouse who is motivated to finish, while at the same time recognizing the other’s need for time to process information and become emotionally ready to make acceptable decisions.

This situation calls for abundant patience—to allow time so that both of you feel involved, engaged, informed and heard. As the mediator who will guide the process, I aim to acknowledge the goal of the spouse who is motivated to finish, while at the same time recognizing the other’s need for time to process information and become emotionally ready to make acceptable decisions.

I also remind everyone that the alternative to a possibly slow mediation process is bringing the case to court, a choice that is almost always guaranteed to cause an even longer delay in concluding the marriage. You may well be stressed, worried and wishing the process would end, but a switch to litigation is not likely to result in the outcome you wished for.

Potential divorce mediation clients are sometimes concerned that they will not be able to come to agreement on decisions that need to be made to end their marriage.  

A mediator cannot guarantee a successful outcome, measured by both spouses being satisfied with the final agreement. Yet most mediations succeed, even many that seem doomed to failure because of impasse. Why is that? 

When mediation is in jeopardy with my clients, I take every opportunity to point out the risks of leaving mediation and going to court—an indefinite delay in the outcome, polarization of children, emotional impacts, disintegration of trust and loss of control over the result.

Sometimes, simply pointing out how ugly the alternative is helps you try harder to find a solution that will work for both of you.

However, this may not be enough to motivate a shift for an entrenched spouse. So then what? 

In handling a potential impasse in divorce mediation, ask yourself if a huge difference between the two of you may actually be smaller than you think. A mediator has an opportunity to pour a drop of optimism into a pool of negativity. I outline all of the current areas of agreement—and usually there are many things you already have agreed upon. Noticing what has gone well can refocus everyone, so that bridging a gap may no longer seem insurmountable. 

In an effort to rescue a mediation that is facing impasse, here are some suggestions I share with my clients:

1. Ask yourself if a huge difference between the two of you may actually be smaller than you think. A mediator has an opportunity to pour a drop of optimism into a pool of negativity. I outline all of the current areas of agreement—and usually there are many things you already have agreed upon. Noticing what has gone well can refocus everyone, so that bridging a gap may no longer seem insurmountable.  
2. Think through possible outcomes in litigation. This may require a consultation with an attorney, which I highly recommend in these situations. In fact, I have often employed a strategy of engaging a neutral attorney to explain how a judge might decide a similar issue. Frequently you will hear that the outcome in court could be uncertain. So I point out that, by leaving mediation, you are gambling on the result. Is holding the line on your position worth it?
3. Consider the full cost of litigation. A mediator can ask you to analyze the total cost of taking a divorce to court. This isn’t just about the money you will spend on attorneys, experts, etc. What about the costs associated with spending time in court, the emotional stress, the impacts on your future co-parenting and your relationship with your children? Is the cost of not changing your position worth what you will expend in money, energy, time and stress?
4. Don’t underestimate the value of settlement. How much can you save (see above) by shifting your perspective closer to that of your spouse and perhaps reaching an agreement? How much are you willing to pay for maintaining a good relationship with your children’s other parent? How much is it worth to you to put this experience behind you more quickly by staying in mediation and working to an agreement?
5. Get help. One of the key features of the mediation process is that there is a wealth of neutral knowledge that can be brought into mediation to assist the mediator in helping you work through your differences. For parenting disputes, we can engage a child specialist. While I have strong financial skills, sometimes it may be better if we bring in a financial neutral as a fresh face to explore options for settlement. Finally, we can agree to bring in a collaboratively trained attorney for each of you for one session, to provide legal support that is focused on problem solving.

​I will use whatever tools I have to produce a successful outcome, As long as you don’t give up, I won’t either.  

Every mediator can tell stories about how mediation has succeeded—when it has resulted in an agreement between the parties.

Of course, mediators are trained to accept the possibility that a case will not resolve through mediation. Sometimes, the fact that the parties in a dispute spoke at all, with the help of a mediator, may help them move closer to an agreement in the future— in a setting other than mediation or perhaps even in front of a judge.

In divorce mediation, when spouses are having a hard time coming to agreements—when you are thinking of giving up—my tendency is to ignore that initial training which would suggest that I “let it go.”  Why don’t I easily accept letting it go? Because if a divorcing couple cannot come to an agreement in mediation, then the next stop is likely divorce court. And I would like to help you avoid that outcome if at all possible.

Over the years, I have worked with countless attorneys and have known many friends, family members and co-workers who have been in court for a divorce. Virtually none of them has a positive story to tell about their court experience.

Over the years, I have worked with countless attorneys and have known many friends, family members and co-workers who have been in court for a divorce. Virtually none of them has a positive story to tell about their court experience.

Transitioning from mediation to litigation poses significant risks and consequences, all of which impact human lives. Here is a short list of the pitfalls:

1. Stalemate—Once litigation begins, the process slows down, and progress can be elusive, taking months if not years. Imagine what it means to put life “on hold,” waiting for closure. For many, healing can only begin when a divorce is finalized. In litigation, healing can be delayed, and the adversarial process itself may extend the time it will take for true healing.
2. Polarization within the family—Ask adult children of parents who had an “ugly divorce” how this affected their image of their parents and how they were impacted by a litigated divorce, especially if they were a part of an invasive custody evaluation.  
3. Mental health issues—Divorce is emotional, conflict is emotional, and a litigated divorce can trigger extreme emotional instability, both for spouses and for your children.
4. The disintegration of trust—Some divorces start with trust already threatened or diminished. Litigation can erode remaining trust and threaten any hope of rebuilding it.  
5. Loss of control – Once mediation ends and litigation begins, you are basically giving up most of your control over the outcome. That control goes instead either to the attorneys who attempt to negotiate a settlement or to a judge, who doesn’t know you at all but who will render a final decision, which is perhaps not what either of you wanted.
   

These life-altering risks and consequences compel me as a divorce mediator to make a concerted effort, by any means necessary, to keep you in mediation—to protect you and others from the extreme damage of litigation.
​
In a future entry, I’ll discuss possible interventions I use in the mediation process to get a mediation that is threatened by termination back on track to a final settlement.

Erosion of trust is a hallmark of the failure of many marriages. Marriages, of course, fail for many reasons. For some, the relationship weakens over time and the circumstances of growing apart, goals diverging or communication breaking down are relatively passive. In that case the trust between spouses may not have weakened in spite of the weakening of the relationship.

However, there are marriages where the actions of one or both spouses may directly lead to a breakdown in the marriage. A breach of trust characterizes these marriages, where there is infidelity, financial irresponsibility, controlling behavior or abusive acts—whether physical, verbal or emotional. 

The absence of trust is a formidable barrier to a healthy future relationship. In marriages without children, this may not feel as important to you. However, if you are going continue to parent together in separate households, lack of trust creates a significant emotional challenge.

The process you choose to end your marriage can have a profound impact on whether the trust that has stayed intact in your relationship will remain so, and whether the trust that has been lost can be rebuilt. Divorce mediation has a much greater chance of positively influencing that trust than does litigation. 

The process you choose to end your marriage can have a profound impact on whether the trust that has stayed intact in your relationship will remain so, and whether the trust that has been lost can be rebuilt. Divorce mediation has a much greater chance of positively influencing that trust than does litigation. 

If you decide to litigate your divorce, you are choosing an adversarial process that is invasive and expensive; and, depending on the attorneys who are participating in the litigation, you may find yourself in a long-term contentious battle with your spouse. Think about what the chances are for the trust that remained in a passive decline of a marriage to withstand this kind of challenge. And if you have already lost trust in each other, will the opportunity to rebuild trust over time be squandered? What will your children observe about your parental relationship when the trust between you has evaporated?
​
In contrast, I believe that mediation offers an opportunity for most broken marriages to end without any further erosion in trust. In fact, the mediation process you engage to maintain control over how your marriage ends will conclude by creating a mutual plan. This can be a first step in rebuilding trust. 

As a mediator, I’m committed to helping my clients build healthy futures that can maintain a foundation of trust, or at least begin the process of rebuilding trust. I’m not saying it’s easy, but it is worth considering how an environment that fosters collaboration and civility contrasts more favorably with one that pits one spouse against the other.