What Happens at Divorce Mediation?
Mediation has become more popular in California for couples going through a divorce. Here are some answers for people without minor children as to what happens at divorce mediations as opposed to more traditional divorce proceedings.
This article is a companion to my article about expectations concerning divorce mediation in California for couples without kids.
We have no minor children, so won’t our divorce be simple?
Some people believe that couples with no minor children will have an easier time mediating their divorce because they seem to have less to fight about – no child support, custody and visitation to work out. While this is expectation may hold true for some couples, I have also seen the reverse. Why? Many couples with kids tend to be willing to make more accommodations and compromises toward one another. They know they will be dealing with one another as co-parents after their divorce is final.
Couples with no minor children do not have the same incentive to accommodate each other. A regrettably high percentage of separating parties with no minor children choose a “scorched earth” approach in their divorce because they understand they will probably never see one another again. If they are carrying pent-up hurt feelings (and perhaps even rage) they finally feel free to vent them in their divorce process. As a side matter, some divorce attorneys may exploit these feelings by escalating the conflict on basic issues in the divorce because these clients represent a gold mine in terms of fees. These lawyers rely on a large retainer that they allow their angry clients to chew through before they attempt to actually settle the case.
My spouse and I have a lot of conflict. Will mediation work for us?
Over my years of experience I have rarely worked with a couple who simply could not reach agreement. I cannot speak for all mediators, but in my mediation practice, I give permission for the full range of feelings. I explain that while mediation is not therapy, emotions are welcome (and even necessary) for the process and to a modest extent give explicit permission for their feelings including their anger, disappointment, sadness, frustration and so forth. I draw the line firmly at threats of violence and attempts at intimidation. I go on to explain that I have conducted many high-conflict cases and the couple’s emotions are not going to detrimentally impact my role as a mediator.
That being said, I do strive to keep an energetic balance and a forward momentum throughout the mediation process.
What does the mediation process look like if the couple has a lot of conflict?
Every divorce mediation is unique, but I have found that the parties usually want to make a good initial impression on me. Many first-time clients secretly think they can win me over to their side by being as nice and polite as possible. However, this honeymoon phase of mediation ends fairly quickly. The couple’s innate friction over the issues in their divorce and their habitual patterns of argument show up.
We then begin the difficult process of dealing with their irreconcilable conflict and drama. At this point, it is important that I, as mediator, remain consistent and even handed, and believe me, couples test me on this! In some cases, I see the need to further explain that mediation is not like the battlefield of arguments they have had in the past. Most couples, (and I get brought in by the Courts to deal with some intractable cases) realize that they cannot win in mediation by attacking or emotionally hurting their ex-spouse. After a few outbursts to test my handling of their emotions, most couples come to understand that they are not getting what they want when they are essentially paying me to watch them fight rather than paying me to help them resolve matters. This little bit of mutuality is often the key to the success of the mediation.
How does your a la carte practice help build cooperation between the parties?
In my mediation practice, my services are a la carte, meaning I’m hired for one session at a time rather than being paid a large retainer up front. Each mediation session stands on its own. The a la carte mediation concept plays a part in inclining the parties toward resolution.
There is no fat retainer to burn into with prolonged arguments. I make it clear at the beginning that if we have not resolved things before the end of the first session, both parties must individually decide whether or not to continue the mediation process. I further explain that they each individually get to decide if they want to continue with me as their mediator. If they see me as favoring the other party or biased against their position, they are free to choose not to continue with me as their mediator.
When both parties have a financial stake in the mediation process there is an incentive for both of them to get their money’s worth. This usually means that they strive to win by resolving matters rather than attempting to win by verbally or financially destroying their soon to be ex-spouse.
For this reason, before we start the mediation session, I request that the parties determine if they are either a) explicitly sharing the cost of the mediation (not always 50/50-some couples split the cost according to their relative income) or b) the cost of the mediation session is being paid by joint funds and so they are implicitly sharing the cost of the mediation.
The ultimate benefit of the combination of the a la carte approach and having a mutual financial stake in the divorce mediation is that to whatever extent possible, it is in both parties’ interests to keep a level playing field and to support my neutrality rather than try and win me to their side. It is implicit that if the couple fights for the whole session and does not settle, then they both need to start over with someone else unless they both decide to continue with my services. This mutuality helps them shift from trying to win at the expense of their spouse (win-lose) and encourages them to find a more balanced outcome through the give and take of a win-win mediation process.
How does your a la carte mediation approach contrast to what happens when a client pays a retainer to an attorney?
When a party to a divorce hires an attorney to represent them, the attorney usually receives a cash retainer up front for the estimated costs of the entire divorce. This creates the illusion in some client’s minds that there is no cost to continue fighting their ex-spouse on even minor issues and some lawyers keep track of the retainer balance before they commence serious settlement discussions.
Moreover, when each party to a divorce has their own private divorce attorney, they often are told that a) they have a winning point on any given issue and b) their soon to be ex-spouse will have to pay their attorney fees if they win in court. This may or may not be true for one side or the other. Unfortunately, you would be amazed how many times both parties have been told this by their attorneys and it is a stone cold fact that it cannot be true for both parties! For more information, click here on the differences between mediation and using the traditional method.
What issues will we need to resolve in our divorce mediation?
Each case is unique and therefore each couple presents unique issues in their divorce. That being said, in general many of the decisions a couple made when they first got together are the same decisions they’ll need to “unwind” when they get divorced. These include deciding where they’ll live after they separate and how they will move into their own place as their divorce progresses. They will need to decide what they’ll need in order to begin to live life apart which brings up such questions as dividing up furniture and other personal property, managing finances, and supporting themselves.
How can mediation help us solve questions about how we split up and where we live after our divorce?
When a couple first gets together they need a comprehensive plan for moving in together and determining where they will live (his place, her place or a new place). As a couple splits up, they again need a comprehensive plan to resolve each of these issues. The level of disruption caused by the breakup of a marriage is enormous and there are too many variables to discuss individual scenarios, but I can say with confidence that these issues are usually complex and are typically emotionally loaded. For example, I recently had a case where the couple moved out of state into a new home they had purchased with all their equity and a substantial amount of debt. A short time later one party wanted to move out and relocate back to the state they had left. Among the problems they faced were cash flow problems, job relocation issues and who would legally and equitably bear some of the burdens of the decision to split up so soon after buying a new home.
Getting divorced is a time when emotions often run high and each decision has lasting consequences. Mediation is a powerful tool to help couples trying to make rational decisions as they split up. Co-creating a move-out plan is not easy. Nor is it easy to come up with a plan to continue to live together while separating until their house is sold, or their shared apartment is rented. As an experienced mediator, I can offer general guidance as to what other couples have found successful and also help couples navigate a fair resolution to their transition needs in a timely manner given their circumstances.
What happens with our home in a divorce mediation?
Couples who own homes or condos present additional issues that may need to be resolved in their divorce. In some cases, one spouse or the other wants to remain in the family home and seeks to buy out their soon-to-be-ex-spouse’s equity. They’ll need to determine the value and terms of a transaction between themselves rather than sell outright to a third party. During the recent real estate crash, many couples with good credit nonetheless had homes with negative equity and it was essential they cooperate together until the economic conditions improved and they could sell their home at a profit. I once had a case where the couple started a major remodel of a million dollar home and they could not sell it until they finished the construction. We met for months as they negotiated each phase of their remodel project. Mediation can provide a setting that allows creative solutions to surface for divorcing couples facing real estate questions which do not lead to a forced sale of the family home.
Couples with a vacation home or investment real estate have their own sets of issues to resolve as do couples with vacation time-share interests. Mediation can be used to address all of these situations.
How can we use mediation to help us divide up our personal property?
Generally speaking, when a couple gets together they need to sort out what furniture and personal property they will keep and what they will get rid of as they combine households. In a similar fashion, when a couple gets divorced, they need to sort out what to do with their physical personal property.
While some items will be easy to either sell or divide, it is almost inevitable that they are both going to want some of the same items and/or quibble about the relative value of different items and reach a stalemate on basic property division.
Mediation can help divorcing couples resolve the common property division problems and facilitate a reasonably fair division of their property. Oftentimes, an experienced mediator can support a couple to negotiate simple trade-offs of personal property that they cannot navigate themselves. Having a third party assist the couple in negotiating an overall process to fairly divide unique and hard to appraise items like art objects can be priceless. When the parties do not agree on values, a neutral facilitator can help the couple arrive at a fair valuation of personal property by moderating the valuation process itself.
What other financial decisions will we face in our divorce mediation?
When a couple gets together they either formally or informally come up with an approach to their joint finances. They need to work together on such things as a) managing spending, b) paying bills on time, c) incurring debt, d) saving for their future, e) investing any money left over after their monthly bills are paid, f) getting their tax returns filed and so forth. When they get divorced, every one of these matters must be addressed, even if these issues were a source of conflict in the marriage. If they were difficult during the marriage, then they are likely to be difficult to resolve in the divorce which is why a third party mediator can help.
While the idea that two can live together as cheaply as one might reflect a general truism when a couple gets married, the hard reality for most divorcing couples is that the standard of living of each will probably fall when they separate. This hard reality brings about hard feelings and very hard choices. A third party neutral can make a huge difference in helping the couple figure out their particular interim and long-term finances and arrive at an equitable/appropriate allocation of financial responsibilities.
Can mediation help us negotiate spousal support?
Spousal support is one of the two most challenging issues for many couples as they divorce. (The other is health insurance). In light of the impact of having to support two households instead of one, it is likely that neither side is going to have an easy time of it. Many states have guidelines for short-term spousal support and an experienced family law mediator can help parties resolve this issue at a cost far less than hiring lawyers and going to court.
Can mediation help us resolve health insurance concerns?
If both parties have jobs which provide health coverage then this issue is easy to resolve. If not some creative teamwork may be needed in order to make sure that each party has adequate health insurance coverage. A good mediator can provide the framework to help divorcing couples solve the healthcare and health insurance challenges that occur when they end their marriage.
How can mediation help divorcing couples solve other problems?
Over my years of mediation practice I have seen many unique problems which couples need help resolving so they can move on with their lives. These specialized questions range from sharing a timeshare or second home after divorce to dealing with pets and beloved farm animals once they have separated households. Every couple has their own challenges in terms of problems, personalities and capabilities. These challenges require a highly customized solution and a good mediator can help with a personalized framework to successfully resolve every dilemma.
Couples going through a divorce face many difficult decisions which cannot be avoided as they separate. I do not think any divorce is easy or pain free, but mediation can offer help during this time of transition. Check out other helpful articles on my website regarding divorce mediation, including this one on what to expect in a divorce mediation, comparisons between hiring an attorney to represent you, doing it yourself and retaining a mediator and what to expect if you have minor children.
If you have children, see my article on divorce mediation for couples with children here.