We asked several prominent divorce mediators how to recognize and overcome some of the most common barriers to a successful mediation. Here’s what they had to say.
Barrier #1: Failure to disclose important information
Although few mediators would argue that failure to disclose important information by either party could fatally impact the outcome of the mediation, how do you define “important information”?
Accurate and complete financial disclosure is “important information.” But it is not the only “important information” that needs to be disclosed. Successful mediation also depends on disclosing personal information in a safe and non-threatening environment.
In the meeting with each client privately during the first informational meeting, the client has the opportunity to tell the mediator what he or she wishes mediation to accomplish, as well as what potential problems of communication or issues may come up. Such issues could include domestic violence or intimidation, how to raise a particularly sensitive topic, or certain sensitivities or “hot buttons” the other may have which otherwise might lie undisclosed.
Sorting and identifying “important information” through private conversation with each client also helps the mediator to move mediation along productively, helping clients to separate and deal with genuine issues which might otherwise be lost in heated discussions, and crafting settlement agreements which reflect the parties’ genuine needs and circumstances. not be able to forgive and forget, but they need to put aside their emotions in a committed effort to resolve the outstanding issues.
Barrier #2: Lack of preparation by clients
Lack of preparation by one or both parties can be the bane of a mediator’s job! It has been my observation in almost 20 years as a divorce professional that the most common obstacle to settling divorce cases, both in litigation and mediation, is the failure by one or both parties to develop a “settlement model” (SM) in which he or she has confidence. An SM is an outline that a party has developed of what a settlement needs to look like to be acceptable to him or her. Without a well considered SM, a divorcing party is left with nothing to rely on in assessing a settlement proposal, other than his or her blind trust (or lack thereof) for the other party or his or her own attorney. The response will likely be, “No!”
Mediation is a rational process based on self-determination (the parties’ right to make decisions concerning process and settlement) and self-empowerment (nurturing the ability of the parties to make considered decisions for themselves). Parties should be making decisions about the divorce based on a well thought-out SM reflecting the party’s needs and those of the children. Such an SM must be based on adequate preparation, including collection of information, professional advice, and adequate deliberation of reasonable needs and preferences for life after the divorce. Adequate preparation in these domains, including spending the time necessary for the party to imagine in detail what his or her life will be like after the settlement, will allow the creation of the SM, which will be the yardstick by which settlement proposals are measured. Your mediator should help structure your development of your comprehensive SM.
Barrier #3: Failure to check or dump emotional baggage
A successful mediation requires that both parties focus on their goals for the future. This is not easy in a divorce context. Often, the marriage has broken down due to a loss of love, respect, or trust. One or both parties may feel hurt, betrayed, or angry. They may instinctively react to each other by venting their anger about past wrongs that they believe the other party has perpetrated on them. This is especially true when one party has left the marriage for another person, dissipated assets, or otherwise acted in bad faith.
However, the mediation process will only be successful if each participant can approach difficult issues with a clear head. Both parties share a common interest in reaching a satisfactory and expeditious resolution of their issues and avoiding high litigation costs. They need to look forward, not backward. The more time they spend dredging up past wrongs in their mediation sessions, the more difficult and costly it will be for them to focus on their future goals. Each party may not be able to forgive and forget, but they need to put aside their emotions in a committed effort to resolve the outstanding issues.
Barrier #4: The myth that litigation will give you everything you want
I constantly counsel clients to get a reality check when it comes to expectations of divorce litigation. In fact, litigation can be unpredictable and an enormous emotional and financial strain on both parties. Litigation should be the court of last resort.
There are certainly situations when litigation is the only practical recourse in dissolving a marriage, usually when other strategies have been explored and exhausted. But when the only alternative is litigation, one should not and cannot expect it to be a magical elixir.
There are always disappointments in litigating divorce, usually very painful ones for the ex-partners and their children. Yes, there are many examples of litigation that result in one party receiving all that was requested. But they are hardly the rule. There are choices that can lead to more satisfactory conclusions, ones that can be fair to all family members and diminish the agony.
Without question, the mediation process is preferable, since it typically obviates many of the burdens associated with litigation. It allows a third party to work on a binding resolution without the costly time taken by litigation that often involves division of property, child custody, and support. Mediation allows spouses, their attorneys and and a mediator (possibly retired judge, disinterested family law attorney or a therapist) to privately resolve the issues and expeditiously derive a final agreement that will be endorsed by the court.
You may think you have a strong case for litigation, but you should remember such actions average 20 months and can cost six figures and beyond. There’s a better way.
Barrier #5: Fear of change
Divorce means change. Lives, families, finances, hearts, and homes are split apart. This much change can be very scary. In fact, divorce can feel as if a revolution is destroying your current life as you know it.
In a traditional litigated divorce, you’re placing the ultimate decision-making authority with a judge. A stranger in a black robe determines how your present family and finances will look tomorrow. The judge rules, and you have to live the life he has chosen for you. Yes, you can appeal his decision, but ultimately, you will rarely determine your own outcome.
Divorce mediation helps you and your spouse make decisions for yourselves that will work for you and your family. With the help of a mediator, who is a highly skilled professional facilitating your divorce negotiation, you can create your own tomorrow.
Like all change, with divorce you have a choice. You mediate your divorce and develop your own opportunities, or you can have a stranger decide for you. Both options require an enormous transformation in your life. With mediation you retain the power to make choices. You decide what works best for you.
Barrier #6: When your ex behaves badly (e.g. rudeness, impossible demands, dishonesty)
The one thing you should keep in mind to help overcome the barriers that may arise during mediation is that it will take two of you to be successful — and two of you to fail. One party can’t act alone.
I’m not suggesting that one side should constantly give in, but rather that you both go into the sessions with the mindset that you are working toward a successful conclusion, not preparing for battle. Try to focus on your goals by keeping your discussions and remarks positive, always trying to stay on the topic at hand, and try not to respond to what you perceive as negative. An experienced mediator will also recognize your efforts, take action to steer the discussion away from a destructive course, and guide the disruptive party onto a more constructive path. This isn’t the place to assess blame but rather to honestly address the problems you’re experiencing and reach an amicable solution.
The issue of dishonesty, however, can be one that could destroy the process. Mediation requires that both parties be fundamentally honest. If a spouse is continually dishonest regarding finances or other issues, the mediator should take steps to correct this. Sometimes that entails speaking with each party’s legal counsel, or sometimes simply reminding the parties that honesty is required in mediation to correct the problem. If the lack of honesty creates an insurmountable barrier, the mediation may have to be terminated with the parties having to turn to more expensive and protracted legal proceedings.
Also remember this is one way that mediation differs from what is perceived as battling through a “regular” divorce. You’ve chosen to resolve your differences in a civil manner and retain control of the outcome. Mediation will only be as successful as the parties involved make it.
Barrier #7: Failure to understand and prioritize the interests of you and your ex
One fundamental barrier to a successful outcome of your mediation is the failure to understand the underlying interests behind your and your spouse’s positions. If you fail to consider and communicate your interests, you may find yourselves at a dead end, with each party entrenched in their positions. By broadening the discussion to your interests, you can move beyond the the impasse to looking for solutions to address both your needs.
The difference between arguing positions and addressing interests is illustrated in the following example: Two patrons studying at a library are arguing over a window. One person wants the window open, the other wants it closed. When the librarian asks the first why he wants the window open, he states he wants fresh air. The second patron says he wants the window closed so he doesn’t have the draft. The librarian then resolves the argument by going to an adjoining room and opening the window. Thus, the patrons have fresh air without the draft.
Before you engage in mediation, it is helpful to make a list of your specific interests. Your most powerful interests are basic human needs: security, economic well being, a sense of belonging, recognition, and control over one’s life. Think about your spouse and consider the interests he or she has as well.
Talk about your interests during mediation. This will help you and your spouse to stay focused on the future. Be specific and vivid in talking about your interests. Doing so will impress the other party with the legitimacy of your interests. At the same time, acknowledge his or her interests as part of the equation. If you want the other side to appreciate your interests, show that you appreciate theirs. You will find that you make the most progress in mediation when you firmly state your interests, yet remain open as to how to address them. Like the patrons in the library, you must remember there is more than one way to address your interests, and some solutions are preferable because they address both parties’ interests.