Will Mediation Benefit Us If We Have No Kids?

            In mediation, we work to make space to have conversations that you have not been able to have on your own, which can help you to have closure, and to move forward without needing to keep rehashing the past.

            You will have the chance to discuss anything that feels unresolved. Couples have wanted to work out details about divided custody for a pet, as well as dividing silverware, wedding gifts, and who keeps the couch.  You can discuss feelings around “dividing” friends.  Many details arise as you un-intertwine, and emotions are connected to monetary value. Our job is to help you to craft an agreement where you both walk away with some benefit; one which feels fair for both of you.

            Mediation can also help you to get closure by better understanding the reasons you’re separating.  Adrian used to be a heroin addict but when I met with them, he had been sober for 20 years. Jill had struggled with an eating disorder since she was a teen. I guided them through a discussion about how addictive issues had blocked intimacy during their marriage. Adrian felt that he had grown and developed during the marriage, but that Jill hadn’t grown along with him. They were both crying – he with sorrow and empathy and she with sorrow and apology.  They left mediation with increased understanding about why their relationship deteriorated, and having shared mutual feelings of loss, which left neither feeling at fault.

            Mason and Rose talked about the issues that led them to divorce. Mason asked when Rose had first thought about ending their marriage.  Rose confessed that at various times she had been unhappy,  and she never told Mason how she was feeling. Mason was devastated to hear this, and asked Rose why?  We delved into the blocks that had prevented Mason from seeing how Rose felt, and that had prevented Rose from communicating her truth.  They left mediation with a better understanding of their marriage, each other and themselves.

            Mediation can help you to resolve open issues and to end your relationship as smoothly as is possible.  We make the space for you to share your thoughts and grief with your (soon-to-be-ex) partner – whether they feel the same way as you do – or not.  It’s a process that allows you to further understand yourself and your ex, to resolve legal issues for a divorce, and to get the closure you need to move on into this next chapter in your life.

Separation or Divorce?

The answer to this is personal, and it depends where you are both at. Are you 100% sure that you are headed for divorce? Or is there a chance of separating for a few months, a year, even 3 – and then reconciling? Do you feel that you would not be able to date if you are still married? Is one of you on the other’s health insurance?
There are three differences between signing a full separation agreement and living apart, according to its terms, and filing for a divorce.
1. Taxes: Filing taxes together as a married couple is usually cheaper than filing as married/separate. While you are still married you can file joint taxes.
2. Health Insurance: Another reason to stay legally married is for health insurance. A married couple, even if legally separated, can stay on each other’s plans, but once you are divorced you can’t. When considering whether or not to divorce it is important to look at the health coverage plans you and your partner have, and if there are any feasible alternatives if you separate. Children’s health insurance is not affected, and they can stay on either parent’s plan after a divorce.
3. Emotional: The ending of a marriage is usually stressful and emotional. Many couples crave closure, and once divorced, feel they are (or will be) better equipped to move on and begin to heal. Other couples do not find as much significance in this legal status. Some people feel that they cannot date while they are still legally married, while I’ve had couples who are living with someone else or even expecting another child when their divorce comes through. Your situation is unique, and you can consider these points as you consider your options.

Mediation or Collaborative?

Is mediation or collaborative divorce the right fit for you?

After you decide that you are going to separate, the first questions you want to answer are: What process will work best for you both? Who are the professionals who can help you to find the steps through to this next phase of your lives? Do you both want to try mediation with a neutral third person to help facilitate your conversation? Or would you prefer to have your attorney sitting next to you during your negotiations?

Mediation requires that you both:

  • be willing to sit together in the room and listen to the other’s point of view, even if you don’t agree with what the other person is saying
  • be willing to voluntarily disclose all financial information
  • be able to express your thoughts and true feelings, with the other person present
  • be able to advocate for yourself, and for what you think is workable for the future
  • have an understanding of your rights
  • not be out for revenge
  • have some facility around finances, so that you both understand your living expenses
  • have the goal of coming up with something that is fair to both of you, and that will allow you to move forward, whole, into your separated futures
  • have some trust in the other person, that he/she is not out to screw you over or destroy you
  • wish to avoid attorneys all together
  • want more control over the process – timing, order of discussing different subjects – and costs
  • both people hope to resolve things themselves, rather than having a judge make decisions about your family and your lives.

In the mediation process, I ask for a retainer fee equal to 4 hours of work, which you would replenish when it reaches 1 remaining hour.

By contrast, the costs of a collaborative divorce average from $10,000 to $50,000.

Collaborative divorce is right for you if:

  • you would like to have your attorney present to help you to advocate for yourself
  • you are worried about giving up too many legal rights, without fully understanding what you are agreeing to 
  • you and your ex are not on the same page with understanding about finances
  • you finances are very complicated, such as where one person is a business owner
  • you and your ex differ regarding how much information you have about finances (for example, one of you pays all the bills and manages the finances and the other ignores them)
  • we would like to invite other experts to be part of the process, such as a child specialist, or a divorce financial planner, who would act as neutrals in the process.
  • one of you has trouble listening to the other’s point of view, when you disagree, and withdraws from fights, or becomes flooded and can’t speak
  • we have questions about financial information, and would like a financial neutral to help facilitate the information gathering process
  • one or both people have difficulty expressing their actual needs thoughts and true feelings, and would like the attorney to speak for them about what is workable for the future.
  • neither is out for revenge or to destroy the other
  • you both have the goal of coming up with something that is fair to both of you, and that will allow you to move forward, whole, into your separated futures
  • have some trust in the other person, that he/she is not out ot screw you over or destroy you
  • both people hope to resolve things themselves, rather than having a judge make decisions for you
  • you both understand that, if you withdraw from the collaborative process, your attorneys will also withdraw, and you will have to start over again, from the beginning, with litigation attorneys.

In the collaborative process, I ask for a retainer fee equal to 20 hours of work, which you would replenish when it reaches 1 remaining hour.  

If you have any questions about what process: mediator or collaborative divorce is right for you, please reach out to our team.

Is Mediation Right for Me?

8 Reasons To Try Mediation:

1. Faster Path to Closure:

You may have been wronged – but getting stuck in conflict, and seeking revenge, will only keep you thinking about and tallying up – reliving – those hurts.  The goal of mediation is to wrap up this part of your life, resolve and settle, so that you can move forward to your new and (hopefully) happier future, without the conflicts of the past.  Let them go!

2. Neutral:

The mediator is neutral.  I won’t take sides with you against your spouse, nor with your spouse against you. Instead, I will work with you to increase your understanding of each other and of your conflict, and help you to find ways that the future structure can work for both of you.

3. Control:

Mediation allows you to have control over the process:

      • You won’t agree until you are ready to – when the agreement meets your needs;
      • You schedule appointments on your time-frame, and can take the time you need between meetings to gather information, consider proposals, run it by those you trust.

4. Private:

Mediation is private and confidential, so that you can frankly discuss cash income, addiction, infidelity and any other sensitive issues.

5. Quicker End to Conflict:

Conflict is painful. Most people have a drive to resolve it. When you understand the sources of conflict, you have a huge release of creative energy which leads to terrific brainstorming sessions about how to solve the problem and end the conflict.

6. Shared History:

You will always have shared your years together.  Even though you are splitting up, you can’t change the past.  Do you want to ‘wish each other well,’ and move forward into this next phase?  Or do you want to destroy your former partner?  Your children will not thank you for destroying their other parent.

7. Better Relationship In The Future:

You may want to attend future birthdays, graduations, weddings; be at the hospital for the birth of your grandchild.  If you have (a) child(ren) together, you will always be connected to your ex.  Mediation will help you keep the lines of communication open, come to a deeper understanding of why things may not have worked in your marriage, and be better able to tolerate seeing your ex in the future.

Litigation is ritualized war.  Afterwards, it will be hard to be civil to someone who tried to annihilate you, during your divorce.  Avoid doing that!  Many kids whose parents are divorced have said that the biggest gift their parents can give them is the ability to be in a room together, and be civil to each other.

8. Reasons People Choose Mediation (quotes from clients):

      • Either we solve it together – or a stranger will tell us what to do.
      • I don’t want it to be lawyer v. lawyer.
      • Keep the friendship that we still have.
      • Have a fair process – fair for both of us.
      • Both of us want to do what’s best for our child
      • Respect each other’s individuality
      • Get clarity about what is the right thing to do
      • Save money
      • Accomplish our goals, such as making sure we are both OK, financially
      • Want to be good co-parents
      • The law is a blunt instrument – discussion in mediation is more tailored to what we need and care about
      • Hope to be able to be friends, in the future
      • Want to spend time together with our child

Moving from Litigation to Mediation

In mediation, we start from an underlying premise that we can find a place which will meet the needs of all members of the family. This is not always the case in litigation and often times the needs of the family get lost in a power struggle full of fear & defense.

Can high conflict couples mediate?

Looking back at the highest conflict couple I ever met with… Were they litigious, and went to attorneys who reflected where they were at? Or, did the attorneys make them more litigious? Hard to know.

An example of their intensity: During our session, she was so angry she THREW a pad of paper across the room as if she wanted to throw a boulder at his head.

Can this couple mediate?

They started their divorce process in a negative way – husband’s parents warning the husband, “She might kidnap the kids and take them to Europe. (She’s from Europe, originally). You should take the children’s passports, and change the life insurance while you’re at it.” He did as they adviced… Injecting fear and distrust into the process.

And then he hired a process server to serve the summons for divorce on her – starting with an attack which makes anyone feel fear – and when you are afraid, you look for protection.

The attorneys were fighting over the kids’ schedule for spending time with dad, and when the fight becomes framed as being about power – who will ‘win’ and who will ‘lose’ – it is hard to evaluate the benefit of trying out different schedules, seeing how they feel and what works for the entire family.

In mediation, I could ask, “How about we try mom’s idea for November, and dad’s idea for December, and then meet in early January and see how the kids are doing, and how it felt?”

But that is because, in mediation, we start from an underlying premise that we can find what they both – at least as far as their kids are concerned – need. That there is a place which will meet the needs of all members of the family. An assumption of bounty, rather than one of limited resources. That quality time with each parent benefits the kids and all of them.

We need enough trust that if one says, ‘the baby had a lot of trouble falling asleep,’ the other parent will say, ‘oh, the poor baby, what do you think caused that? how can we help him to avoid that in the future?’ and they can work together to try to resolve the problem.

Here – not sure we had that.

Also – she was invested in proving that she has been the #1 parent in the kids’ lives – wanted to know dad’s work schedule over the past year, to prove that he wasn’t a consistent dad. Instead of the question framed as – how can he be a better dad going forward, given his work and travel obligations?

Six Things Your Litigator Doesn’t Want You To Know

Six Things Your Lawyer Doesn’t Want You To Know

 OR – Why You Should Mediate Your Divorce

  1. Children
  • Your children will never thank you for destroying their other parent
  • Children always know the truth of their parents’ divorce.  They will focus on it, and listen carefully to everything they hear, and piece together the story.
  • The longer you are embroiled in conflict, the longer before your children can settle back into being normal kids – focusing on school, friends, music, soccer – and not on the conflict between the two people they love most in this world.
  • No lawyer or judge knows your children as well as you do, and they don’t, and never will, care about your children as much as you do.
  • The legal system sees your children as pawns – who “has custody” of them?  Who “has visitation” with them?
  • Actually – the words “custody” and “visitation” don’t have to appear in your parenting agreement!
  • Who “visits” their children?  You want parenting time, not visiting time.  The children are not in prison.
  1. Cost
  •       Do you want to put your children through college?  Or your lawyer’s children?
  •       Litigation is obscenely expensive – $100,000 to $300,000, if you end up at trial.
  •        There are families for whom $300,000 is peanuts, but that is not the case for most of us.  (And they have more to fight over, so spending $300,000 might make sense to them.)
  •        Lawyers have a conflict of interest around settling the case.  If an attorney stands to earn $20,000 in a negotiated divorce, and $150,000 if the case goes to trial, will he/she really put 100% of effort and focus into settling the case?  Would you?  (I’m sure many attorneys try, in good faith, to behave ethically, but we are all influenced by our own needs and potential rewards.)
  •     Ask your attorney to sign an agreement to withdraw, in the event the case goes to litigation, and see how he/she reacts.  A collaborative agreement which requires mandatory withdrawal will shift the attorney’s focus toward settling, and get rid of the conflict of interest.
  1. The judge is not going to “feel your pain.”
  •          The judge will not be outraged (the way that you understandably may be) by the way your spouse betrayed you, broke all promises, ignored your marriage vows and left the marriage.  The judge has (a) heard it all before and (b) wants to give each side something.
  •        Judges have a tendency to have you win on some issues, and your ex win on others.  To split the baby.
  •      You won’t see a judge for a long time, and when you do, he/she will want to hear from your lawyer, not you.
  •      The judge will not be the wise parent whom you have always wished you had, and believe you deserve.
  •        Judge’s dockets are too full for them to get to know you, and to put a lot of deep thought into your situation, your family, and your best outcome.
  1. Lawyers
  •         Attorneys make a lot of promises they can’t keep.
  •      The outcome of a trial is never a sure thing.
  •          Lawyers are good about saying, “I’ll argue this, and I’ll argue that,” but not always good about telling you the arguments against you — “And this is what your ex’s lawyer is going to argue for him/her,” or “This is the outcome that will most likely be ordered in court.”
  •        The lawyer’s job is to keep fighting, and to come up with arguments to strengthen your case.
  •       The lawyer’s job is not to resolve things, to help you move on with your life.
  •       Litigators are fire-fighters and they won’t focus on your house till it’s about to burn down.  Which won’t be for 2-3 years.
  1. Ritualized War
  •                 The legal system sees the restructuring of your family as a legal problem.
  •                  If it’s a legal problem, you need lawyers to “resolve” it.
  •                   You can, instead, see it as a human/family problem, and the people who best know you, your family, your children, are in the best position to help you decide what you each need, going forward.
  •                      If you didn’t need a lawyer to get married, why do you need one to get divorced?
  1. It’s Your Life
  •                       People often wish to give this whole mess to someone else – to meet with a lawyer, an expert, a  judge, who will hear their side, and understand and sympathize, and take care of it for them. (And who can blame you?  Divorce is overwhelming.)
  •                         Well – yes – most matrimonial lawyers are able to sympathize, and listen to your story, and get angry on your behalf.
  •                          But the reality is that, once you have paid the retainer fees, you will find it very difficult to reach your attorney on the phone.
  •                             Litigation takes up a lot of time, and attorneys are usually in court every morning, working on the cases that are ready to go to trial.
  •                             And your case – well it won’t be ready to go to trial for 2-3 years.

Mediation v. Litigation

I was called in for a court-ordered mediation for a post-divorce couple, about to have a trial. Mother requested a custody change.

This couple are very wealthy – a walking advertisement for the idea that having a lot of money is a disadvantage when you’re getting divorced. (Because you can get sucked into litigation.)

They have been embroiled in litigation for 7 years, and have spent more than $500,000 in legal fees.

How could this happen? Here’s what I see:

1. Each has a feeling of entitlement – maybe a bit spoiled. “This offer is not perfect, so I won’t take it.”
2. Unrealistic experience of life? Is anything perfect? Do they feel – ‘my life isn’t perfect, but it’s supposed to be?’
3. Attorneys who see role as to fight – rather than to counsel. “If there is an argument to be made then it’s my job to make it.”
4. Parents who have little self-reflection or insight –
5. Always looking outside themselves for the solution – “I have this problem, and you need to solve it.” Passivity.
6. Part of the passivity is – not answering any questions themselves – constantly looking to attorneys to tell them what to do. They have delegated authority for their lives to their attorneys.

The mediation was actually immensely successful. During the weeks that we were working together, for the first time in 7 years, the couple celebrated a holiday with the children, peacefully and joyfully – they were able to sit in the room together.

Sitting down together, asking them what they are thinking and feeling, and brainstorming about goals are really different ways to approach the family situation (apparently) as contrasted what the attorneys have done with them for the last 7 years. We were able to resolve almost all of the outstanding issues between them.

Why Mediate?

I usually begin mediation sessions by asking a couple why they are coming to mediation. This helps people to remember what kind of process and outcome they are hoping for – as well as lets me know how much they know about the process.

I met with a new couple last week, and when I asked them this question – I was blown away by their answers! In 5 minutes, they described the most idealistic mediation process, and highlighted (what I see as) the benefits of mediation. They said:

  • they want to stay amicable
  • mediation is less costly
  • mediation would allow them to maintain good communication
  • makes sense because they have a son
  • not a lot of contentious issues between them – why enter a process which might create conflict?
  • avoid a war-like session
  • get guidance and counsel from neutral, objective persons
  • won’t waste money
  • more antiseptic – won’t create big wounds
  • more transparent – by starting discussions in the room together, they would explore information together, and decide together

So beautiful!