In my career as a mediator I have heard and read about many misconceptions about Divorce Mediation. In this blog I will focus on what I consider to be the Five Most Common Misconceptions about Divorce Mediation.
#1- Mediation Won’t Work in High Conflict Cases- Spouses or Partners Need to be “Amicable”.
It is not necessarily realistic to expect spouses or partners to be very amicable as they contemplate separating or divorcing. Certainly, it is sometimes the case, but if partners or spouses were that amicable they might not be getting separated or divorced. In other words, as mediators we understand that there is often much hurt, disappointment, frustration, anger, sadness, fear and a host of other emotions that our clients experience. We offer in mediation a very safe and supportive environment with the hope that the clients can leave the process in the most amicable manner possible as they continue in their lives, often as co-parents.
Mediation is well suited for even high conflict cases. The alternative, litigation, can be pathologically draining and destructive emotionally and financially. Sometimes it is necessary, but it can fuel the fire with high conflict couples.
Divorce mediators are trained in conflict resolution and family dynamics. Couples are not talking by themselves. We are experienced in identifying triggers and also in helping with more effective communication techniques. Couples often are very entrenched in negative communication patterns that they aren’t even aware of. We are trained to identify them and help clients communicate more productively.
Mediation looks to resolve. It is very solution oriented. Mediation does not foster a “Win-Lose” mentality or framework. This is especially important when children are involved! The mediation or litigation will end but co- parenting is forever. Mediation helps to change the dialogue between parents for the years ahead.
The mediation framework also offers an opportunity to caucus if emotions escalate in high conflict cases. At the New York Divorce Mediation Group our practice is based upon a co-mediation model with each couple working with two co-mediators. This provides an opportunity for caucusing where one spouse may talk with one mediator and another spouse with the other mediator and then the mediators can help focus on the respective concerns of the clients to help resolve things more peaceably.
The bottom line is that people who are filled with emotion or who don’t like each other or who disagree can mediate. We do it every day. Often these clients come out of the process communicating in a different, healthier manner and all with less stress.
#2. Mediation is Only For Simple Low Asset Cases- Not For High Net Worth Clients
This may be the Biggest Misconception.In my experience it is often easier to mediate with higher asset/higher income families.
I am seeing this more with the increase in long term marriages, commonly referred to as GRAY divorces. These couples often have accrued greater assets or have higher income than younger couples.
It is a great deal easier to move forward financially with greater assets and higher income. These families are not as worried about paying the bills or being financially secure. They are not as worried about how they will afford two households. In contrast, lesser income clients are focused on their ability to put a roof over their heads, much less two roofs over their heads, and putting food on the table.
Higher asset couples are more confident in their financial futures and in their ability to live comfortably in separate households.
Also, for higher net worth clients we can avail ourselves of other professionals in the mediation process, including pension evaluators, business evaluators, financial planners, retirement professionals, tax professionals, trust and estate professionals, special needs professionals and real estate professionals, among others. These professionals can come in as neutrals or to help one party.
Higher net worth clients often report preferring a more confidential process. They often don’t want to be in court and prefer privacy of resolving their situation, under their own timetable and not one that is court imposed.
#3. A Couple Can Only Mediate if They Have Equal Power/Advocacy Skills
This is an arena where I really try to do the best assessment I can when I do a consultation.
Not often does each member of a couple have equal power or advocacy skills.
It is very common for one spouse to be more financially savvy or for one spouse to be more responsible for paying bills or financial planning etc. but there are many elements in mediation that can address this issue.
The mediation process requires full disclosure of assets and debts.
We have clients prepare individual budgets and we go over them line by line so everyone is on the same page as to what it will likely cost to have two households.
Furthermore, mediation clients can utilize if they so choose a consulting attorney. It can be very helpful when clients have consulted with an attorney who has advised them honestly about their RIGHTS and RESPONSIBILITIES. This is important when clients have unrealistic expectations- they tend to focus on their rights or entitlements but not so much on their responsibilities or obligations. Consulting with an attorney can be so much more helpful than listening to the chorus of family and friends who may mean well but who might set up unrealistic expectations or offer inaccurate information.
Other professionals who can help where there are unequal advocacy skills are divorce coaches, therapists or mental health counselors, or various divorce financial professionals. For each case our clients are guided to consider the use of affiliated professionals, as needed, who can offer support and information.
Although this blog is not focusing on issues of domestic violence in our practice, we provide an intake form for clients to give us confidential information to screen for it. We have offered safe spaces for before or after a session for clients who wish to mediate but who express a need for a cooling off period before or after a session.
#4. Mediation Means Settling for Less
Divorce mediators have the unique ability to understand both spouses or partners points of view and help each of them as much as possible achieve some of their goals. Both spouses or partners are given an opportunity to discuss what their respective interests are and what is really important to them. In mediation we focus on meeting as many of those needs as possible.
Any negotiated settlement involves compromise no matter the forum. Indeed most court cases are settled anyway. Even if your case goes before a judge there is no guarantee the judge will rule in your favor. A good agreement, which can be accomplished through mediation, is one in which both spouses or partners may not get everything they want, but have agreed to terms that give them what they need to move forward.
#5 Divorce Mediators Make Decisions for the Clients
Mediators do not make decisions for the clients. The participants retain control. Divorce mediators act as neutrals and identify the issues that need to be addressed. Mediators facilitate discussion and keep the participants on track. Mediators provide information or access to information and help the clients explore options. Mediators educate their clients in general on legal issues. We prepare, for example, the spousal maintenance guidelines and child support guidelines.
Studies have shown that when people reach agreements on their own-that are not IMPOSED on them- that THEY feel are fair –they prove to be much more SUSTAINABLE agreements. They are more likely adhered to.
Clients can always come back to mediation to modify their agreement. Often it is required in the agreement before going to court to try one or two sessions in order to save time and money and to continue with the mediation process.
Most often in my practice, if modifications are sought they are usually related to the children with respect to parenting plans, child support recalculations, or other expenses related to the children.
A testament to the divorce mediation process is that during the Covid crisis we have seen clients either working out modifications on their own or seeking our help where changes have occurred that have needed modifications. This has been related to situations where one parent was an essential worker and issues needed to be addressed to work out comfortable rules to minimize Covid risk or where one parent lost a job or had to work from home and children were home and parenting schedules needed to be readjusted. There were no courts open and the families had to work it out and I saw that time after time that the clients who had the experience of working issues out together during mediation were able to continue to do so either on their own or with our assistance. This is a very powerful validation of the mediation process for resolving separation and divorce issues. Any questions please reach out to one of our divorce mediators on Long Island at the New York Divorce Mediation Group online or by telephone at 516-749-5017 for a free consultation. We are available to answer all of your questions and to discuss all of your concerns.