Mediation or Collaborative?

After you decide that you are going to separate, the first question you want to answer is 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.


The costs of a collaborative divorce average from $10,000 to $50,000, but it is good for couples where:

  • 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
  • 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 how these processes work, please email or call me – you can contact me on my website – www.Mediate2Resolution.com

Advice for Children

Client: “We told our teenager on Monday that we are separating. I am uncertain how to have read the expression on her face…maybe slight shock, or disbelief. We have had so many years of conflict, it’s hard to believe she was surprised! This has really unseated me…we went shopping on Tuesday and had a nice day, really some great moments, bopping around looking for cool stuff. But there was a pallor that was present all day.

“I want to be able to tell her why this happened, so she understands, but I don’t want to play the blame game. I can’t be completely honest, and so I think she is confused…and I am getting so stressed.

‘I don’t feel grounded when [my ex] is around, and I am sad and angry. Sad about all the losses, and also doing this to her when she is getting ready to go to college. Everyone is putting on their happy face but this is confusing.

My response: It’s always amazing to find out how much kids can be in their own heads, and not notice things going on around them. We think they know/sense what is going on between the adults – but they often do not. Being a teen especially, is an experience full of compelling drama – much more interesting than parents are!

best rules:

  • let her ask the questions – don’t bring it up nor volunteer information, other than what and as she asks you for it/about it.
  • remember that – psychologically/unconsciously – children feel that they are half their mother and half their father, so that if someone says ‘your dad is lazy,’ they hear it as “half of me is lazy.”  That can help to guide you to avoid the blame-game.
  • remind her that she didn’t do anything to cause this.

In my experience, children ALWAYS know the truth of their parents’ divorce.  She knows both of you, inside and out, and over the next 20 years she will ask more questions. There is time.

The challenge will be finding that balance between feeling you are being your authentic self – and protecting her.  She doesn’t need (nor want) details.  If you’re feeling sad – you’re allowed to tell her that, too.  It’s the end of a long relationship, and it’s very normal to have mixed and complicated feelings.  For all of you. But complain to your friends and your therapist – not to her.

The Children’s Needs Can Guide the Parents

I met with a couple who used mediation for their divorce, about 14 years ago, and wanted to resolve a conflict now for their restructured family. The mother emailed me to tell me that they were having trouble figuring out the credit that the father should get for the child’s room and board expenses while he is in college.

She implied that they were having a lot of conflict, and that the children spent almost no time with their father, and that the parents communicated infrequently, and only via text.

I feel nervous before the meeting, worried that the distance of the years that have passed would turn the whole thing into a screaming match. It turned out that both children have had problems, and that the parents have really pulled it together to support the children in a way that I found very moving.

The mother started out by saying that she also agreed that her receiving child support while her son is away at college, and she’s not feeding him, didn’t feel fair. This lowered the temperature in the room, because father felt understood, and he didn’t have to “fight” as hard.

They told me about how their son is having some challenges, and the mother found a boarding school program for him to attend. The parents weren’t speaking much at that point, so the mother just put together the money to pay for a year in boarding school. The father said, “she did an amazing job. She probably saved his life. I didn’t have the money to pay for my half of that school, but in the future, if I do, I will pay her back.”

Since they both acknowledged each other’s needs, the rest was simple calculation. We finished up, and they left. When I came out of my office, about 15 minutes later, I saw them standing together outside, up the block, talking to each other.

Can you come back from litigation, and mediate successfully?

Highest conflict couple I think I have 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.

She was so angry she THREW a pad of paper across the room –with the most intense energy, as if she wanted to throw a boulder at his head.

Can they mediate?

They started their divorce process in a bad way – husband’s parents telling him “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,” which he did. Injecting fear and distrust.

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 need 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.

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 then 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?

Fuel for Fights

People get into the worst fights when what they are fighting about is not what they are really fighting about.

I am working with a couple who have an extremely (unusually) hostile and embittered post-divorce relationship. I am working with them as a parenting coordinator, not a mediator – which means that I was appointed by the court, and have the power to make decisions, if there is a time-sensitive matter pending. Usually, during mediation, I don’t have the power to make decisions (and why should I? Those are not my kids).

This couple contacts me periodically to mediate disagreements, as they arise.

Recently, they reached out to me, because their child’s pediatrician recommended that the child see a psychiatrist. (‘Hurray,’ I thought, because after witnessing the amount of venom and rage that these parents express toward each other, I could only imagine how pulled-in-two that child is constantly feeling – great to give the child the support of a therapist.)

But now they are tussling – bitterly – over which psychiatrist to choose! The father works at a premier, top-ranked teaching hospital, and received some referrals to a couple of doctors affiliated with the hospital, by someone in his department. The mother now thinks that anyone in the hospital is automatically suspect, and will be biased in favor of the father, simply because he works there.

Conflicts are:

Will Dr. be biased in favor of the parent who pays? One parent has offered to pay if services are not covered by insurance.
Will Dr. be biased if one parent is employee of the same hospital at which Dr. is working?
Will the child be pressured by one parent or the other to choose a Dr. which he/she chose first?

And the real underlying conflict is the competitive battle that these parents remain locked in – who will ultimately “win?” Because – I would think that credentials and years of experience would give the doctor a presumption of competence.

Does 50/50 reflect your feelings of self-worth?

A couple came in to see me to mediate the terms of their separation. While still living together, the questions I would usually ask are:

• what are your thoughts about who will move out?
• what schedule do you want for the children to spend time with both of you?
• do you want to separate finances now? That will require (most likely) support payments (Child and maybe Spousal), and determining who will pay which expenses.
• or – you could just maintain joint accounts, and continue paying bills, including the new bills for an additional apartment, together, for the time being.
• is there anything else you need to discuss right now?

However, as we talked, it seemed to me that Allie wanted a more detailed and final separation, more like a comprehensive divorce settlement. She wanted to separate their money. She didn’t want Warren to look at her spending, or comment about what she spent money on.

This couple can afford to have one kid in boarding school, and one kid in private day school (and they do) – and yet, most of their conflicts revolve around money.

But did their conflicts really revolve around money? Allie had not been working outside the home, during their marriage. Their older child had special needs, and Allie had been the parent who organized and brought the child to all of the diagnostic and therapy/treatment appointments, while at the same time managing the household. Allie spoke clearly and eloquently about the ways she had contributed to Warren’s and to the children’s successes – Warren had always been able to work late, and to travel as much as his employer wanted him to. He was able to be completely dedicated to his career, because Allie was home and completely dedicated to keeping the family running (food on the table, clothes to the dry cleaner, kids to appointments, schools, tutors, advocating for services, etc.).

Warren agreed and acknowledged that Allie had done great work as a parent and homemaker; but I could see her brushing him off. Allie did not hear Warren’s compliments and recognition, while I saw that an off-hand comment to the contrary stung her deeply.

She said that during their marriage, she would occasionally want to pamper herself in some way, but that Warren would make disparaging comments about her spending, which made her feel ‘worth less,’ than Warren, because her work did not bring in money to the family.

It was these feelings of being worth less than Warren that caused Allie to end the marriage. Allie said to me, during mediation, “I want spousal support that will give me what I’m worth.”

This struck me as a very difficult goal. Is our “worth” as human beings tied to how much we earn (or don’t earn) in our jobs? I don’t think so. Would their children feel that their mother is worth less as a person, because she is not earning? Definitely not.

But – can the amount of monthly spousal support that Warren pays to Allie make her feel that she is worth more? I would posit that the answer to that question is – no.

“There’s a hole in the middle of the prettiest life,” as the song goes* – and nothing will fill it up.

It doesn’t help that Allie has not handled money much, during their marriage. Warren pays all the bills for the family, invests their savings and retirement assets, and Allie admittedly is ‘not good at understanding finances,’ so she may not have a realistic understanding of what are the options for the monthly support.

Warren started out by offering her 50% of the family income, and he said that they would each pay 50% of the family expenses, but Allie felt that would be too much book-keeping.

That surprised me – because 50% would meant Allie is an an equal – what could be more fair than that? And symbolize better that they are of equal worth?

—————
* For Real, by Bob Franke

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.

Protecting Children From Conflict & Self-Blame

I was watching a movie the other night, (Future Weather) in which a 13-year-old girl came home from school and found a note from her mother saying, “I went to California. I left $50 in the drawer for you, for groceries.”

The girl lived in the house for a few days by herself, until her grandmother discovered her living alone, so she moved to her grandmother’s home.

Later in the film, she and her grandmother were bickering, and the grandmother said, “You know your mother wanted to get an abortion. Yup, she wanted to get rid of you, and I said to her, ‘over my dead body.’ Serves me right, now I’m stuck with you. What goes around comes around.”

This is one of the most horrible things I have ever heard someone say to a child! This child will never forget that statement, and never be rid of the feeling that she is the cause of all of the troubles of the adults in her life, she is the reason that her mother left to go to California.

I thought about my clients, who work so hard to protect their children from the conflicts between them, and who want their children to come through the divorce with as few scars as possible. I thought about the Child’s Bill of Rights, which I put into every agreement:

a. The right not to be asked to “choose sides” between the Parents.
b. The right not to be told the details of fights between the Parents.
c. The right not to be told “bad things” about the other Parent’s personality or character.
d. The right to privacy when communicating with either Parent.
e. The right not to be cross-examined by one Parent after spending time with the other Parent.
f. The right not to be a messenger from one Parent to the other.
g. The right not to be asked by one Parent to tell the other Parent untruths.
h. The right not to be used as a confidant regarding the difficult issues between the Parents.
i. The right to express feelings, whatever those feelings may be, or to choose not to express certain feelings.
j. The right not to be made to feel guilty for loving both Parents, or for developing a loving relationship with a new partner of either Parent.
Many of the parents I see are distraught over the pain their children will suffer, as a result of the divorce but – boy, it could always be worse.

Seeing Both Sides – A Challenge

Had an irate e-mail from a former client, who is now in litigation with her husband and was feeling (retroactively) that I was not neutral, but was instead biased in favor of her husband.

They were in litigation before they came to seem me – and came in for 6 hours of mediation, to try to settle their differences – but ended up back in litigation.

People often do feel that I’m ‘on their side.’ But what they don’t always see is that I’m also on the other person’s side.

In this case, the father really wanted more time with the child, and I was certainly sympathetic to that. The latest research shows, very clearly, that children who have good relationships with their fathers do fantastically better, in school and in life, than do children who have been cut out of their father’s lives (or abandoned by fathers).

In fact – even for children whose fathers just walked them to school on Mondays after week-ends – or fathers who attended parent-teacher conferences but otherwise never set foot in the school – get a much clearer message that their parents both feel that school is important. A little bit of dad goes a long way.

But – on the other hand – this guy was a kind of a loose cannon. He’d had his driver’s license suspended for speeding, and had in addition had several accidents, and he did not want to agree not to have the child in the car while he drove. He wasn’t even supposed to drive at all – no license! I tried to make him see that that wouldn’t go over too well with a judge, and he really didn’t get it.

(Was this narcissism – nothing I do can be wrong? Or stupidity. I don’t know – but came to the same thing – that dad might not have been a safe person for that kid to be with.)

Anyway – I reminded the wife of these things, and assured her that I had seen them – and she felt reassured that I was also “on her side.”

Sensitivity & Pain

One of the most painful issues that I see, among divorcing couples, is the tendency to self-blame, to a fault. Meaning – that 1 person says something that might be innocent – or might even be a fact – and the other person hears it as SEARING criticism.

For example – “I am a teacher, so I can be with our child at 3pm. On your nights he is not with you until 6pm.”

This is a factual statement. The 6pm parent practically burst into tears, hearing it as an accusation of not being a dedicated, caring parent.

I guess we are all hypersensitive when it comes to comments of our spouses – and even more so, when the relationship has deteriorated to the point of breaking up.

I always feel – speechless – at these moments. My goal, during mediation, is to bring that dynamic to their attention.

“Wow, so it sounded to me as if you felt like M—was saying that you are a less-involved parent.”

“yes, he/she was saying that,” will reply the upset parent.

“M—were you trying to say that?”

Usually M—will respond with – ‘absolutely not, I know that you are a completely committed and involved parent, in fact a great parent to our child.’

How painful to be in a relationship where you are so often wounded by the other – whether or not the other has not been intending to wound you. Probably leading to the breakdown of the relationship.

We are all happiest in relationships where we like ourselves, we like the person we feel that we are, when with the other person – and who wants to be a person who constantly hurts our lover?