Setting Expectations for Divorce Mediation
A successful divorce mediation process can sometimes hinge on whether the parties have appropriate expectations going in. In our decades of combined experience as divorce mediators at Conscious Family, we’ve learned there are a few important things to convey to parties at the outset of mediation.
Mediation Is Empowering, But That Creates Different Challenges
Mediation can serve a wide range of families going through a restructuring process. However, because mediation empowers participants to author their own lives — in accordance with the law, of course — it can be a harder way to go than simply hiring an attorney to do the talking and negotiating. Mediation requires each party be an active participant in reaching agreements. Our mediators help both spouses fully state their needs and concerns. We also answer questions about what the law says. But only the parties can ultimately make final decisions about how to divide their property and co-parent their kids. We help people see things clearly, but in the end the decisions are theirs. Mediation requires parties to show up and advocate for themselves in a way that may be quite different from how they showed up in the relationship. Each person has to decide what agreements are acceptable and what compromises to make.
Even Collaborative Parties Suddenly Can Feel Stuck
It’s important to expect that things might get difficult during the process. Sometimes worries surface that costs are going beyond what was hoped. Or that the mediator is not being effective. Even very collaborative couples often end up feeling stuck. We are always open to feedback, and if we’re doing something that doesn’t make sense, we want to hear about that. It greatly improves overall outcomes when parties are active participants, and engage fully. Our mediators help spouses through those stuck places and find creative solutions. Our Rules of Engagement are also specifically designed to help couples have productive discussions that ultimately lead them to creative solutions. But it helps to know ahead of time that it’s likely some rough patches are on the way.
We Welcome Private Time With Each Party
A mediator will welcome time with one party alone, and may request it. This is called a “caucus.” This is an opportunity for the mediator to help one party work through how to bring what may be a sensitive topic into the mediation. Caucuses may be requested by either party to discuss a sensitive issue with the mediator, and are an important part of the mediation process. Sometimes in mediation, whether or not caucusing is used, it might seem to either party like the mediator is taking the other party’s side. If someone believes that, it’s important for him or her to tell the mediator. That can give the mediator a chance to explain his or her approach. It’s crucial that parties feel the process is fair and unbiased from start to finish.
Mediation Can Feel Like It’s Going at the Wrong Pace
While mediation can go at whatever pace is appropriate to the situation, a mediation process is often, when compared to protracted litigation, a condensed, more expedited process. There’s not the same weeks, months, and costs of lawyers going back and forth with one another, and then preparing for a full trial before a judge. As a result, parties can be signing a settlement within a few months of making the decision to separate. This can leave some parties feeling emotional whiplash, or excessively drained and overwhelmed, as they navigate things so quickly. Or, sometimes, the right pace feels to one or both parties like things are not moving fast enough. While we don’t have any authority to make people do anything (mediation is a fully voluntary process), we do our best to keep discussions and settlement negotiations progressing. Good mediators will know to expect a variety of feelings about the speed of things, and can expertly guide people through a process at the pace that is right for the situation and parties.
The Results of a Successful Mediation May Not Feel Great
One final note about what is a “successful” mediation. A mutually satisfactory resolution might not feel great. While sometimes the outcome could be described as “win-win,” more often each side has had to give some ground. As long as each side feels about the same, it means there was mutual compromise. Each side may have had to give more than he or she wanted, but each party should both feel equally that way. Even in a win-win situation, it is an emotional process to change the legal structure of a family. Parties often feel a profound sense of loss at the conclusion of the process, even if they navigated the legal process without excessive conflict. Sometimes parents in particular are well-served to utilize “detachment therapy” to process grief separately before trying to become friends immediately after separation or divorce. While we can’t prevent difficult feelings, we do our best to help people find the path forward that is fair and that will work.
We are proud to have served countless families to mutually satisfactory resolutions through mediation, as opposed to costly litigation. It is our hope that having a set of clear and informed expectations will help even more families come out of divorce mediation as a healthy, functioning family, with a new legal structure.