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Are These 5 Mistaken Beliefs Keeping You From Mediating Your Divorce?

August 6, 2015

Chris and Remy are divorcing[1]. Remy did some online research and became overwhelmed. Remy then made a few calls to divorce attorneys and was dismayed by the cost. Chris alternates between anger and grief. Chris’s friends tell Chris to get a pit-bull attorney so as to not be taken advantage of, particularly regarding custody of their children. Both Chris and Remy have heard horror stories about divorce trials, but believe they have no alternative.

1.     Lack of Familiarity with Mediation

By its very nature, mediation is private. As a result, few people learn how mediation might be the best option for divorcing couples, particularly couples with children. To compound matters, trial attorneys often fail to advise their clients that mediation is an option, and may cause matters to escalate rendering mediation less viable.

Such is the case with Chris and Remy.  Though sophisticated, neither knows that they could jointly hire an attorney-mediator to help them develop acceptable terms for ending their marriage.

2.     Mistaken Belief that Mediation is for ‘Wimps’

What little Chris knows about mediation is not good. Chris read about Gwyneth Paltrow’s “conscious uncoupling[2]” and laughed out loud. Chris does not want the divorce and feels utterly betrayed by Remy. Chris is not about to just hand over the kids and half of everything they own. Chris believes that to even offer to mediate is a sign of weakness.

Chris holds a common misconception. Parties deciding to mediate are not wimps.  Rather, they are self-empowered, courageous individuals attempting to resolve matters themselves rather than, or at least prior to, turning their divorce over to a judge to decide.

Good mediation is hard work and not for the faint-of-heart.  It requires frank discussion and engagement. A skilled mediator does not pressure the parties to simply “split the baby” or enter into unsatisfactory compromises.  Rather, a good mediator labors with the parties to come up with creative, long-term solutions that meet both parties’ needs.

3.     Mistaken Belief That Mediation is a Strategic Mistake

Chris’s friends and family have warned Chris that Remy will take advantage of mediation to exert financial pressure, gather information and extract concessions. Remy is afraid that the mediator will take Chris’s side and will help build Chris’s case.

Both Chris and Remy are mistaken. The mediator is a neutral third party and will not take either party’s side. If the parties need to prepare for trial, they are required by law to share financial and other information with the other spouse. Therefore, neither party damages his or her case by sharing such information in mediation. Further, mediation communications are private and strictly confidential. No mediation communication, other than a final signed agreement or a legally required report of abuse, can be shared with others or used in divorce proceedings.

4.     Mistaken Belief that Mediation is a Waste of Time and Money

Remy has heard that mediation is a waste of time and money. Friends have said that even if Remy works hard to reach an agreement with Chris,  that Chris could simply walk away and the two would end up in court anyway.

Of course, if agreement is reached, the time and money spent will likely be worth it.  However, even if agreement is not reached, the parties are likely to benefit from simply trying to reach agreement.  For example, the parties benefit from hearing the other spouse’s position on a given topic.  They may also benefit by being able to reduce the number of issues in dispute and thus the cost of trial.  They may also be comforted in knowing that they tried to resolve their dispute before they resorted to court proceedings.

5.     Mistaken Belief that Reaching an Acceptable Agreement is Just Not Possible

Remy and Chris have not been able to agree on anything for a very long time. Both doubt that mediation could be productive. At some level, they are also afraid to try and fail at yet another joint endeavor.

It is in this place that perhaps mediation can do the most good. In a divorce, the parties often despair that they will not be able to comfortably interact with the former spouse or be able to co-parent after the divorce. Mediation can restore hope. Mediation might even permit recovery of the relationship.

By focusing on underlying interests and needs, the parties often discover that they can craft creative solutions that work. With each small building block of agreement, the parties are able to begin re-building their lives.



[1] Characters and scenario are entirely fictional and are for illustration purposes only.

[2] Five-step divorce program developed by Los Angeles therapist and author Katherine Woodward Thomas which was referenced by actress Gwyneth Paltrow to describe her April 2015 divorce from singer Chris Martin.