Although it is best for both of you to be in the same room for mediation, if you absolutely are uncomfortable, you should discuss this with your mediator. Most of the time, it is best to meet together; however, occasional private sessions are appropriate. If there has been domestic violence, then of course you may feel frightened and under those circumstances you may wish to make special arrangements.
However, if it is just “”uncomfortable” to be around him/her, then perhaps if you try a joint session with both of you in the same room you may feel differently. Here are the advantages of being in mediation together in the same room: it is private, there are no court reporters, no public records, the process is confidential, and you may wish to be heard by your spouse with the assistance of a neutral to be supportive of your right to speak.
You will hopefully choose an experienced neutral professional to make sure that there is a fair and balanced process where each of you can be heard without interruption or intimidation. The mediator is your facilitator to make sure that neither party bull-dozes the other. If you are not in the same room, you will be wondering what accusations may be said about you by the other party – you won’t know what is said and won’t know how to respond or rehabilitate what may have been said. You will be more trusting of the mediation process if all is fully disclosed in an open trusting environment.
Be assured that if you must speak to the mediator alone (perhaps to share a particular issue such as a health problem, a new significant other, possible allegations of the other hiding money, etc), you have the right to ask for a caucus, which is a private time with the mediator without your spouse present. A caucus may be on the phone or in person. It is a time when you may speak to the mediator about something that you are concerned about revealing in front of your spouse. A caucus is an ethical element of mediation. Once the mediator hears your concerns, he/she may (with your permission) bring up the issue in a very calm and neutral manner to resolve the issue and help you to get your interests and needs met. If there are only caucuses, the parties are less trusting of what is happening in the other room. The goal of mediation is to build trust and empower the parties come to a mutually agreeable settlement. Because mediation is consensual and meant to meet the needs of the parties, if, after you try a joint session, it is not working for you, discuss creative options with the mediator who should accommodate your concerns.
Mari Frank is a divorce attorney who practices divorce mediation in Laguna Niguel (Orange County), CA. She has been featured on numerous national television shows including 48 Hours, Dateline, NBC Nightly News, and The O’Reilly Factorand in newspapers across the nation including the L.A. Times, The Washington Post, and The Wall Street Journal.