Improving Your Chances in Mediation

Learn when divorce mediation is likely to succeed - and when it might not

Even if you (and/or your spouse) don't feel ready to mediate, when you consider the financial and emotional costs of a contested divorce, you might want to get out on the dance floor and give mediation a try. But before you do, read through the following list of factors that may help you to have a successful mediation experience.

The Decision to Divorce Is Mutual

Sometimes, the decision to divorce is mutual. Both spouses come to the conclusion, more or less at the same time, that the marriage is over. For other couples, the decision is more one-sided. One spouse decides that a divorce is necessary, while the other spouse is unprepared for, and perhaps opposed to, the idea of getting divorced.

When the decision to divorce is mutual, spouses usually find it easier to begin working together on a settlement in mediation than they would if one spouse initiates the divorce. Where one spouse makes the decision, it is natural for the other to resist cooperating with any requests to move along in the process, including a request to mediate. This usually changes with the passage of time, so factor timing into your assessment of your readiness.

If you are the one who is leaving the marriage, prepare to be patient, and let your spouse know you're willing to wait until your spouse is ready. Check with a mediation-friendly legal advisor to make sure essential matters that can't wait get handled while you're waiting. If you are not the one who's initiating the divorce\, don't be afraid to ask for time to adjust to what's happened. Let your spouse know you're not ruling out the possibility of mediation when the time comes.

You Have No Desire to Reconcile

If you and your spouse have accepted (however reluctantly) the reality of your separation being permanent, and if neither one of you has an overwhelming desire to reconcile, then the odds are that each of you has reached a point in the emotional divorce when mediation can be productive. This doesn't mean you must rule out the possibility of reconciliation. But you do have to be ready to focus on what happens if you and your spouse don't get back together.

You Want to Stay on Good Terms With Your Spouse

Spouses who want to remain on good terms with each other, either because they have children together or because of their own values, can use this motivation to get through the rough spots in negotiating and compromising during mediation. It is not essential to a good mediation, but it certainly helps.

Check to see if you have a high level of animosity toward your spouse that could undermine mediation. If so, you might find it helpful to work with a counselor on ways to keep this animosity in check while you go ahead with mediation. Another option is to find a mediator who will conduct some or all of the mediation in separate meetings so that you don't have to deal directly with your partner.

You Don't Blame Your Spouse for Your Separation

It's natural at times to blame your spouse for things that went wrong in your marriage or for the decision to divorce. But if you feel that your spouse is entirely, or almost entirely, to blame, you might find it hard to enter into any agreement in mediation that your spouse considers acceptable. And if you want your spouse to acknowledge and pay for his or her wrongdoing in some way, such as giving you the bulk of the marital property, mediation may not succeed, because your spouse may not be prepared to accept any blame, let alone pay for it in some tangible way. If your state's laws allow you to prove fault as a ground (reason) for the divorce, and you have the emotional and financial resources for it, maybe a contested divorce is the right approach for you.

Your Spouse Has Not Lied to You About Anything Important

If your spouse has lied to you in the relationship, you may need to take a close look at whether or not you can trust your spouse to be truthful and sincere during the mediation. If your spouse has lied to you about an affair, you may be understandably afraid to believe anything your spouse tells you, especially if you only recently discovered the deceit. But this doesn't necessarily mean that your spouse will lie about other crucial aspects of the relationship, such as finances and property.

If your spouse has lied to you about property or finances, you have a different problem. It might not be wise for you to rely on the voluntary exchange of information. You may want to consult a lawyer about other ways to verify important facts independently. You may even need to ask the lawyer to conduct legal discovery of the facts and records to give you a complete financial picture before starting mediation and attempting to negotiate a settlement. It may also be important to work closely with a lawyer or financial advisor during mediation to develop settlement options that don't rely on your spouse to provide information in the future. If necessary, there are financial professionals who can uncover assets your spouse may be trying to hide or is unwilling to divulge. These professionals are forensic accountants, and they are able to reconstruct income and expenditures and the ownership of assets based on facts about a person's lifestyle, occupation, and known property and other assets, and behaviors. And these professions can conduct investigations to uncover other financial information your spouse may be wrongfully withholding from you.

You Can Disagree With Your Spouse Without Saying or Doing Things You Later Regret

If this statement is true, you have the ability to stand up for yourself during a conflict with your spouse without losing control of your own behavior. You don't need to be perfect to have a good experience in mediation. After all, helping you communicate constructively is one of the mediator's main jobs. But if your emotional reactions to your spouse are so strong that even attempting this seems impossible, then mediation may not be the right thing for you just now.

You Are in Good Physical and Mental Health

Mediation is not always easy. It is a structured negotiation that at times can be quite strenuous, emotionally and mentally. If your stamina is depleted by poor physical or mental health, mediation could be counter-productive.

You Understand the Financial Situation

Financial issues are a big part of any divorce. In order to negotiate a good financial settlement, you need to understand the financial reality with which you are working. The mediation process can help you get a better handle on your financial situation, but the more you know to start with, and the more comfortable you are talking about financial matters, the more confident you will be going into mediation and the fewer surprises you'll encounter. Also, if you know very little about your joint finances and your spouse is very knowledgeable, you may feel at a disadvantage going into the mediation.

You Are Not Easily Intimidated By Your Spouse

In mediation, you will speak for yourself and negotiate your own agreement. If you find yourself easily intimidated in your spouse's presence, speaking up may be hard for you. Practicing in mediation, with the coaching and support of the mediator, can help you get better at this, but you'll need a minimum level of self-confidence just to start the process. The mediator will not be representing either of you against the other spouse; you should think of the mediator as a facilitator rather than a representative.

Physical Violence Is Not an Issue in Your Relationship

If physical violence is part of the relationship with your spouse, it may not be possible to keep the playing field level and tempers cool enough to negotiate an agreement directly in mediation. Where there is violence, there are also likely to be issues of intimidation or fear for the victim of violence.

Alcohol or Drug Abuse Is Not an Issue In Your Relationship

Alcohol or drug dependency can impair the ability to think clearly and make sensible decisions. It can also lead to out-of-control behavior. This can undermine the success of any negotiation, whether it is conducted between lawyers or during mediation.

(If You Have Children) Your Spouse Is a Good Parent

Mediation is usually considered one of the best ways for divorcing parents to negotiate agreements about their children. You can talk, parent to parent, about what is best for your children, rather than leaving the decisions up to strangers. Differences in parenting styles or the amount of time each of you spends with your children can be addressed in mediation. But if you and your spouse strongly disagree about the ability of one of you to take care of your children, you may not be able to negotiate an acceptable custody arrangement until that issue is fully evaluated. This is especially true if the problem you are concerned about is so serious as to constitute child abuse. If your disagreement about parenting issues is so pervasive that you cannot agree about how to proceed, you may need to get things started through the court. Even so, you might be able to use mediation to negotiate an agreement after the evaluation phase is completed. In fact, you may be required by the laws of your state to attend mediation in a court-sponsored program before a judge will even hear your case.

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