The common perception that one spouse is not cooperating in meditation is often triggered by what has not been seen or heard, rather than by the other partner's actual behavior or statements. The spouse who refuses to comply with the wishes or demands of the other is frequently viewed as uncooperative, regardless of the reasons for disagreement. The mediator should first try to determine the nature and level of any identified uncooperative behavior before articulating options to the concerned spouse. A good mediator is forever cautious about impacting on the fundamental neutrality in the process: always wanting to appear, and hopefully remain, unbiased.
The "good divorce" as an outcome of mediation is best served by exploring options that promote cooperation based on common understanding, rather than on individual initiatives marked by a threat of action.
Couples tend to bring particular positions to mediation that are, on the surface, in opposition. Determining what the interests are behind a particular position and addressing those issues is usually helpful in promoting cooperative results. The effect of exploring each individual's interest in putting forth a position is that it will often uncover desired outcomes that are mutually inclusive or, at the very least, have no negative impact on either party.
In those circumstances when a spouse "just isn't cooperating," it may be appropriate for the mediator to provide the reality-check necessary to encourage a more conciliatory approach to negotiating in mediation. The use of caucusing (in which the mediator meets individually with one client) may provide the most positive result. The mediator can engage one partner in a more comfortable setting in order to understand the basis for the impasse. The non-compliant spouse usually finds it easier to express fears or discomfort in this less threatening environment.
The litigation option rarely engenders a "good divorce" as an outcome. Neither emotions nor finances will be left unscathed or intact.
David Klegerman, B.A., CHRP, Acc.FM (OAFM), FMC Cert. CFM is an accredited family mediator and certified human-resources professional, specializing in helping high-conflict couples work through all aspects of separation.