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.
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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?
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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. 

Clients often ask me, “What do you think?” The question is totally understandable. Most of my clients haven’t been divorced before, so this is a new and challenging time for them, and they are seeking help.

Any answer I may offer to that question will sound like my opinion, and opinions are usually not neutral.

Similarly, when first meeting with clients, I’ve been asked what I will do if I think an agreement they are making is not “fair.”

Leaving aside the premise that “fair” is subjective, this raises an important question, namely, what is a mediator to do when the mediator thinks that an agreement between the spouses is in fact one-sided?

For me, the answer is based on two principles: informed decision making and self-determination.

Throughout the mediation process, I am facilitating the exchange of information, whether it be legal information for you if you don’t retain an attorney during mediation, or analysis of financial information provided by you to create a common understanding of financial circumstances.

In those rare circumstances where I can see a true imbalance in the negotiated settlement, I use the information of the settlement to test the decisions that have been made and seemingly accepted by both of you. For example, in a recent case, I provided a summary of an unbalanced settlement in clear but un-opinionated terms, so that the person who appeared to be getting much less could see how much less they were getting. Similarly, where the assets being divided by agreement seemed to leave that same spouse at a financial disadvantage, I provided the information without comment. Numbers don’t lie, and numbers by themselves reflect neutral information.

And this is where self-determination fits it. I may personally think that a settlement is unbalanced, so I may offer information—to give you space and time to reconsider and reopen the discussion, or (as in the case above) to consult with an attorney and get the support of legal advice. However, ultimately, it will be your decision alone, and not mine; you are the one who determines what is acceptable. As a final step, I may also exercise my own curiosity to ask you why you feel a particular agreement is acceptable in light of the objective information that has been shared. The answer quite often reveals a set of values or principles that are more important to you than the information itself.

Being neutral is not the same as being a potted plant in the mediation room!  There is plenty I as mediator can say and do to help you make the decisions that work for you without inserting my own opinions and judgments into the mediation process.

Being neutral is not the same as being a potted plant in the mediation room!  There is plenty I as mediator can say and do to help you make the decisions that work for you without inserting my own opinions and judgments into the mediation process.

In a recent consultation, a new client told me he had been advised by two different attorneys to steer clear of mediation. While I didn’t probe too deeply, it seemed that the attorneys thought mediation would leave this client unprotected and vulnerable to being taken advantage of by his spouse.

I appreciated that the client chose to explore mediation as a process option in spite of being advised otherwise. At the same time, I struggled with hearing (not for the first time, and probably not for the last) about an attorney speaking negatively about mediation.

There are quite a few divorce attorneys who also present themselves as “mediators,” some with extensive training and experience, and others, perhaps not as much. I have thought for some time that the undeserved negative reputation ascribed to mediation by some attorneys is diminishing. Admittedly, as a mediator who has great passion for my work, these negative statements feel disrespectful to all of us who seek to help others come to their own resolution on their own terms.

I believe that attorneys who speak negatively about mediation either don’t understand the mediation process or perhaps don’t even want to understand the process, as they would prefer to step in and “protect” you and even “save” you from making your own decisions that they don’t agree with.

From a pragmatic perspective, I believe that attorneys who speak negatively about mediation either don’t understand the mediation process or perhaps don’t even want to understand the process, as they would prefer to step in and “protect” you and even “save” you from making your own decisions that they don’t agree with.

I would be the first to say that a divorce is a significant life-changing event involving strong emotions that can leave you vulnerable. However, the mediation process can and is structured to protect you while also allowing you to engage in a conversation with a-soon-to-be-ex-spouse in order to plan for separate lives and possible co-parenting. All the clients who have come into mediation with me after beginning a litigated divorce have told me that their litigation lawyers discouraged them from talking to their spouses. How are solutions to be found when there is no conversation? The unfortunate answer is that other people make those decisions for you, and the lawyers (and, in the most contentious cases, the judge) control the process and the outcome.

As a mediator, I must remain neutral, which is not the same as being uninvolved in providing a safe and calm environment for informed decision making. These are some of the principles to which I adhere, serving to protect you as a client engaged in mediation:

1. Encourage legal support—Family and divorce mediators have an ethical obligation to encourage mediation clients to seek out legal advice. This may include a consultation with an attorney before the mediation process starts, during the mediation process, and/or after the mediation process ends for purposes of reviewing the documentation of agreements. In some cases where a client may feel particularly vulnerable, attorneys are present (and appreciated by me) in the mediation sessions. However, I also believe that you have the right to decline any kind of legal advice and rely upon your personal sense of equity and reason to make your own decisions.
2. Promote informed decision making—Whether you have an attorney or not, I provide legal information to both of you, so you can be aware of the laws that apply to your circumstances. You may already have received this information from your attorney; I just want to make sure. Full financial disclosure of all sources of income, assets and debts is also a MUST in my process. This ensures that all of us have the same financial knowledge.
3. Invite balance through appropriate questions—A fundamental process goal for me is making mutually acceptable decisions. If I sense that this goal is not being met in the mediation process, I will ask questions that are focused around the reality of what is being decided—i.e. why do you think this acceptable to you/them? How is this going to work?—so that both of you can consider if a decision is really right for you.

It may be true that a litigated divorce can result in one spouse or the other getting more money, support or parenting time than what might be negotiated in mediation. To the litigator who promotes this concept, I would ask two questions: (1) can you guarantee it? and (2) what will it cost the client in time, money and anguish?

This you can count on: In mediation, you can be assured of a timely process, cost effectiveness, a safe environment and a result you control.

“Can mediation work for my divorce?”  The answer to that question will vary, depending upon who you are and whom you ask.
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When I hear this question as a divorce mediator, I take an optimistic approach— informed by my experience in working with hundreds of couples over the years. I strongly believe that mediation can work in most cases, and I also acknowledge (albeit with regret) that mediation does not work in all cases.

… I invite new clients to meet with me for an initial consultation appointment. This creates an opportunity to discuss realistic expectations before starting mediation itself.

Interestingly enough, most cases that are not well suited for mediation never get started. That is one of the reasons why I invite new clients to meet with me for an initial consultation appointment, at a reduced fee. This creates an opportunity to discuss realistic expectations before starting mediation itself.

A mediator works within his/her own particular process. In my mediation work, I set goals. These goals establish expectations that, if met, can support a successful resolution. If they cannot be met, they create an early warning indicator that mediation may not be the right process.

Goal One: Establish the opportunity for each participant to express her/himself and be heard:

In mediation, I am hosting a conversation with two spouses who are attempting to plan a future apart. Both have a stake in this process, and, therefore, each needs a chance to speak. What one spouse says will not necessarily be agreed upon by the other spouse, but each needs to express personal needs and fully participate. This lays the groundwork for exploring options to meet both sets of needs. That conversation provides the catalyst for envisioning a path forward. If that exchange cannot happen, because one or both are absolutely unwilling to engage each other, then mediation may not be the best course for resolution of the divorce. Others may need to be involved to do the hard work of negotiation and decision-making.

Goal Two: Assure the decisions made by the participants are mutually acceptable:

Whether we are talking about parenting or finances, every decision is important. In mediation, part of my role is to check in with both participants when they are poised to make a decision on a proposal, to make sure that this proposal is something they can fully accept. It is one thing to come into mediation with the idea that a resolution requires a degree of “give and take” based on principles held in good faith. It’s something completely different if coercion and bad faith are present—another clue that other professionals, like attorneys, should be present at the mediation sessions to support the participants, or perhaps a different process may be needed.

I want to emphasize that, fundamentally, for most clients who have engaged my services, mediation has been a good choice. Knowing what is expected to order to participate successfully in mediation can help those who are skeptical to make the best decision for their unique circumstances.

In a recent divorce mediation session, my clients were discussing a real estate matter. After one spouse spoke, the other exclaimed, “This is the first time I’m hearing you say that!”

In that moment, the conversation stalled, while both processed what had been said. They were surprised. But from my perspective, informed by experience, this encounter was quite normal.

The idea that you always know everything that resides in your partner’s mind is idealistic—not typically based in reality—especially when you are on the verge of ending a relationship that is failing as a result of poor communication.

The idea that you always know everything that resides in your partner’s mind is idealistic—not typically based in reality—especially when you are on the verge of ending a relationship that is failing as a result of poor communication (one of many possible reasons for a marriage or relationship to end).

There’s something else to consider. In any marriage, healthy or not, you will evolve in your behavior, your priorities, your values, your needs, your opinions. So will your partner. You don’t stand still. You will change and likely recognize that this is happening, but your spouse (and/or you) may not see it. Acceptance and understanding of change are very important to the health of a marriage, and I would argue that they are just as important when spouses are planning for how to move forward at the end of a relationship.

What I find particularly interesting about these spoken “surprises” is that they are often a catalyst for a process known as “brainstorming,” which is key to the facilitative approach to mediation that I apply in my work. In brainstorming, the participants in a mediation (you and your spouse, in a divorce) will address a topic/issue/problem by offering up any conceivable option for consideration, no matter how far out. This process maximizes the choices available for addressing the matter at hand.

More often than not, a statement by one of you that is surprising to the other opens up possibilities that neither of you may have considered before. This new information can serve as a pathway to further discussion and, in the end, can result in an unanticipated solution.
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A surprise in the moment, therefore, can be the first step toward building an agreement for the future.

In many divorces I have mediated, one or both spouses talk about feeling trapped in a marriage.  

Perhaps you are feeling that you’ve been unable to pursue an opportunity and have lost ground in your quest for enrichment or fulfillment.

I often wonder how much of what is being experienced by a “trapped” spouse is related to questions about identity. Do you feel that your marriage is preventing you from continuing a journey to be who you want to be, and to be seen by others as the person you truly are?  

Unfortunately, when you are not seen by your spouse the way you want to be seen, this can affect self-esteem and create a sense of unhappiness. You turn both inward into yourself and outward into questioning the future of the marriage.

This circumstance may be resolved by the spouses through counseling or other processes that can help save a marriage. And yes, mediation itself can be a very effective way for couples to take a future focus that includes keeping your relationship intact. But if issues are not resolved, the marriage will usually end.

Divorce inevitably involves a sense of loss, pain and, often, other emotions that are associated with uncertainty (fear and anger, to name two).
If you are leaving a marriage out of a sense of being trapped in an unhappy situation, this is an opportunity to consider what to do with the freedom that is associated with not being stuck, at last!

At the same time, if you are leaving a marriage out of a sense of being trapped in an unhappy situation, this is an opportunity to consider what to do with the freedom that is associated with not being stuck, at last! Who is the person you really want to be? How do you want to be seen by others?  What will it take in personal terms—whether it be education, job change, new living situation, etc.—to achieve your desired identity?

The end of a chapter may include regret; the beginning of a new chapter can also bring promise and hope. A good starting point in the transition between chapters is to focus on who you are and who you want to be, and then be that person.