Who Watches Out for Me in Divorce Mediation? The Mediator Should.
Many people are aligned in principle with mediating their divorces, wanting to avoid the conflict and expense of lawyering up and litigating. But some wonder if they engage in mediation, who will have their back? The “neutral” and “impartial” mediator can’t do it can he? What if the other party starts getting aggressive and digs in? How will you know if you’re getting a bad deal?
While it is true that mediators are generally required to remain impartial and neutral—and do not represent either party—this does not mean they cannot support each party in understanding, expressing, and achieving his or her interests in a mediation.
First, the fact that mediators are supposed to remain neutral does not mean they have no interest in what agreements are reached by the parties. Of course, the mediator can’t stand to benefit personally from a particular outcome. However, a Conscious Family divorce mediator does have an interest in ensuring:
That the parties reach a fair settlement that is supported by the law and that will be approved by the judge who will be reviewing it.
That the parties have considered the long term health of their co-parenting family in the agreements they’ve reached, particularly the interests of their children.
That all agreements have come out of a meticulously fair process, i.e., after the parties have fully disclosed all relevant information to each other and have a clear understanding of the facts, law, and possible outcomes of their case; and neither party has coerced or strong-armed the other.
That the parties have fully explored, understood, and expressed what they want and need out of the divorce, with regards to parenting, money, property division, etc.
A Conscious Family mediator is a lawyer who can help the parties to understand what the law of divorce is in Colorado. He can help the parties think about various settlement scenarios and how those might look for them long term. He can bring in experts such as financial advisors to help people understand and best think about money and property issues, both short and long term; and child psychology experts to help parents reach agreements that are best for their children. He will always encourage parties to seek independent legal advice if they feel they need additional explanation or support, and to review the final form of legally binding agreements.
Some people also wonder if going to mediation means they have to “play nice”—for example, to not express how they really feel, to not have their story heard, and to concede on issues of great importance to them in the interest of being “collaborative.” This is untrue. Mediation works much better to the extent people behave in a civilized manner, i.e., refrain from yelling, insulting, or resorting to sarcasm with one another. But this does not mean parties can’t powerfully express their feelings, story, and desires in mediation. A Conscious Family mediator will help both parties powerfully express themselves in ways that help them to be understood and to get what they want, without resorting to verbal violence. And while compromise is often necessary to reach agreements, a skilled, conscious mediator can help both parties get to the bottom of what is most important to them and find creative ways to obtain those things.
Most of all, a Conscious Family mediator wants to help the parties reach agreements that work over the long haul. That happens best when people feel they have done the right thing and have not compromised in ways that don’t feel right to them.
Engaging in mediation doesn’t mean you have to give up on what you believe in or go it alone in order to avoid conflict. A conscious mediator will help you to engage in conflict safely, knowledgeably, and productively, and to reach agreements that work for you and your children. If you decide to go the mediation route to resolve your divorce, make sure your mediator has the knowledge, skill, and legal expertise to support you appropriately throughout the process.
Peter Fabish is a family law attorney-mediator, and co-founder of Conscious Family Law & Mediation. Learn more about Conscious Divorce Mediation here.