Mediation and Neutrality

A neutral mediator is key to the mediation process. This neutrality in the mediator can help heal the pain of divorce and increase understanding. It is never simple to determine why a marriage ends.  The end of the marriage takes two, as does the beginning .

My challenge as a mediator is how to understand/empathize with both people. 

Take this situation for example:

Brad & Helen have come into my office. Brad went out to get a newspaper one Sunday morning and did not come back or call for 3 days.  He left Helen with 2 young children, without even a note.  I could imagine her anguish, and the children’s fears.  But during our sessions, Helen never let Brad speak!! What he did was not right. But something drove him to do this.  His experience led him to this decision and both experiences are vital to understanding what is at play.

What is my role as a neutral mediator?

Most of us are doing our best to make our way through life.  We try not to hurt the people we love, or have loved.   But we are imperfect creatures, so we do not always succeed.  We are hurt and we lash out – and the other may not know that he/she has hurt us.  Through my understanding as a mediator, I can often help people to forgive themselves and each other – which will help them to move forward into their new lives post-divorce.

Divorce raises hurdles, as you restructure and begin to figure out your new life, and also raises complex emotions.  Mediation is a good place to explore these changes. When you are navigating the maze, the last thing you want to hear is that your spouse’s position has more validity. 

These feelings are especially intense where the impetus for the break-up of the marriage is a situation with deep emotional effect – for example, where one person has a new lover, or where one person walked out on the other very suddenly and without warning.  The identity as a wronged person becomes compelling and attractive. 

In mediation we focus on a broader picture. A neutral mediator can bring you closer to the truth, and the truth will help you to move on with your life.

A IN-DEPTH EXAMPLE OF HOW MEDIATION & NEUTRALITY WORK IN ACTION:

Anice and Marshall came to me for divorce mediation. Anice expressed her thoughts clearly. She loved Marshall passionately and still believed that he was the love of her life. She had made a commitment to him which, to her, meant that she would stay with him no matter what. She told me that Marshall had had other affairs in the past, and had always returned to his commitment to her. “How do I know that this time you are serious?” she asked him. “What makes you think that, 3 months from now, you won’t change your mind again and come back to me?”

The couple had recently purchased a house. Anice said, “Why did you buy this house with me if you wanted to get out of the relationship?” The couple had greatly disparate incomes, and although Anice had been the motivating force behind their buying their home, she was not at the present time able to figure out how to pay the expenses of the house by herself.

I could have felt that Anice was “right,” and Marshall – a lousy toad. She was the one with commitment and vision, she felt sure that this marriage was the right thing and was able to stick with her husband through thick and thin. She planned and worked to enable them to buy a home. And after this loyalty, what was her reward? Constant betrayal, multiple affairs!

Then Marshall told me about his experience. He spoke eloquently about his need to move on from a relationship which felt stagnant to him, and from which he could no longer derive any sense of intimacy or romance. He was very grateful to Anice for all the love and support he had gotten from her, and the achievements he accomplished because of her support. But for a long time he had felt that there was something missing. This feeling drove him to seek outside relationships, even though he had derived from Anice love such as he had never before experienced in his life.

At the present time, he felt stifled by the relationship. He felt responsible for Anise. He was aware that she wasn’t able to earn as much money as he could earn, and he felt trapped. Although he felt platonic love and respect for Anice, he had a new girlfriend. For Marshall, the 12-year relationship had evolved into a friendship.

After hearing Marshall, I felt his pain. I felt how Anice’s willingness to stay in a relationship with a man who was sleeping with another woman made Marshall feel trapped. He saw her as a crazy woman who had no self respect, who would live with him even though he rejected her.

In truth, I felt great empathy for both Anice and Marshall. Through my understanding of them, I was able to sympathize with Anice, who felt deeply committed to this man, and hurt every time he told her that he still loved her – and who felt that she would have stayed with him no matter what happened, even if he had outside relationships.

I felt empathy for Marshall, who expressed that this marriage, though it had endured for 12 years, had never completely fulfilled him. He felt an excitement at the change to break free and try again in a new relationship for something that felt more healthy and fulfilling and less co-dependent and suffocating than his relationship with Anise.

My job, now was to do my best to increase their understanding of each other. Marshall had a better understanding of how Anice felt than she had of his point of view. Once understanding is improved, they would be ready to negotiate the fairest way for them to divide their house and their possessions.

Anise had to confront the reality that Marshall wanted a divorce. When I helped her to accept this, she was able to negotiate alimony for a period of time, so that she could keep the house and eventually become self-sufficient. Marshall saw the alimony as a way to buy his freedom, and it was a great relief to him to be able to do that. They were both satisfied with the terms and their divorce agreement was completed.

Children perceive their parents neutrally during a divorce. As much as you might want your child to side with you against the other parent – it won’t happen – and it shouldn’t happen. A child will never thank you for taking away his mother or father. The children each contain a little bit of each parent, and they are able intuitively to understand both parents’ points-of-view. The children understand the limitations and strengths of both their parents and love them.

I can think of many cases where I had deep empathy with both people, and could see both their sides. I had a case where the marriage was breaking up because the woman was a lesbian. I empathized with the husband, Allen, who, in his early 50’s had to leave his beautiful house. He had to rethink his whole life with Marge, in light of these changes in her outlook. He had believed he’d had an OK marriage. He didn’t want a new life, but the old one had been snatched from him.

Marge was able to communicate to me the excitement and liberation she felt as she embarked on her new life. She showed me that something had always felt “wrong,” in her life, and now, for the first time she didn’t have that feeling.

Marge came to mediation believing that she had embarked on a course of self-discovery. But during our sessions, she came to a new understanding of how this journey had affected Allen. She ended up giving him a more generous financial settlement, partly to assuage her guilt, and partly to help Allen to also feel that he was getting an opportunity to embark on a new life – that might hold some promise, excitement, even happiness not present in their old one.

The truth is that it is never simple to determine why a marriage ends. Something was probably always lacking in Allen and Marge’s marriage. Why didn’t Allen see that? Why didn’t Marge know earlier? The end of the marriage is created by both, as the beginning was created by both.

My challenge is always to understand both people. In another case the husband, Brad, went out to get a newspaper one Sunday morning and did not come back or call for 3 days. He left Helen with 2 young children, without even a note. I could imagine her anguish, and the fear of the children. But during our sessions, I could see that Helen never let Brad speak!! I’m not saying that what he did was right, only that I understand that he did the best he could and that something drove him to do this terrible thing. Something that he felt had been equally awful had been done to him or he would not have done this to her.

And that is probably the crux. I do believe that most of us are trying the best we can to make our way through this life. We try not to hurt the people we love, or have loved. And we do our best. But we are imperfect creatures, so we do not always succeed. We are hurt and we lash out – and the other may not know that he/she has hurt us. Through my understanding, I can often help people to forgive themselves and each other – which will help them to move forward into their new lives post-divorce.

Divorce raises all kinds of hurdles, as you restructure and begin to figure out your new life – and also raises all kinds of complex emotions. When you are navigating the maze of these changes, the last thing you might want to hear is that your spouse’s position has some validity. (And that is one of the appeals of the adversarial system. When you are hurt, angry and shaken up, who would not want to hire an experienced warrior, who will tell you that you are right and that your evil spouse should make amends – usually monetary – to avenge these wrongs?)

These feelings are especially intense where the impetus for the break-up of the marriage is a situation with deep emotional effect – for example, where one person has a new lover, or where one person walked out on the other very suddenly and without warning. The “right” spouse might find that the new identity as a wronged person becomes intensely compelling and attractive.

The answer is that neutrality will bring you closer to the truth, and the truth will help you to move on with your life.

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

Negotiating A Prenuptial Agreement

Why mediating a prenuptial agreement can be beneficial:

A woman called me, distraught. She said that over the course of 4 months, she and her fiancé had paid about $10,000 in attorney’s fees, had months of stress and agony, and ended up getting married without having signed the prenup. Now, 3 months into their marriage, the unsigned prenup remained an issue, but their attorneys could not find a way to agree.

The confluence of their fears and their lack of confidence merged to produce a situation where they felt frozen and unable to move forward. When the husband’s lawyer said, “You might as well have her waive her rights to your pension and her rights of inheritance,” the husband did not know whether this was ‘standard,’ or unusual, and didn’t find a way to say “no,” to his lawyer – even though this was not his goal in entering into the prenup.

I met with them together, in a mediation session, and asked them what had been their original goals for the prenup. As we created a list of those goals, it became clear that they were quite aligned.

Robert owned some properties with his brother and mother, and wanted to keep those as separate property. Alicia was fine with that, that felt fair to her.

They asked me to use the prenup that their attorneys had drafted, and edit it. I had to do a lot of deleting, to take out all of the extraneous things that one attorney said was necessary to “protect” the client, and the other attorney refused to accept. I ended up with a postnuptial agreement that met their original goals.

They came in again, we read it through, they made a couple of changes, and then they signed it that night. They were both so happy to find a way to resolve this whole matter so smoothly, after a process which left them feeling frightened and that their conflicts were intractable.

The power of mediation!

Read more here to find out if a prenup is right for you. 

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?

Fuel for Conflict

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 (and unusually) hostile and embittered post-divorce relationship. I am working with them as a parenting coordinator, not a mediator. This 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.

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 psychiatrists affiliated with the hospital. 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.

What is in conflict?

  • 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?

It seems 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. I hope through our work, we can find a way to refocus the conversation back to what is best for their child.

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.