“If you and your spouse aren’t speaking to each other, or if there are significant power imbalances, can you still mediate your divorce?”
Clients are frequently skeptical about mediation; they see it as a waste of time and money because they can only focus on their inability to resolve conflict in the past. As a result, they do not see any hope for resolving conflict now. It is also very common for a spouse to believe that the other spouse has the upper-hand — either because they perceive that the other person is more skilled at negotiation, has always gotten their way in the past, understands the finances better, or is a “smooth talker.” Not only can a successful mediation overcome these obstacles; it can provide an opportunity for you and your spouse to find the best possible outcome for your dispute.
If you and your spouse are getting a divorce, you have a problem to solve that may include several issues related to the children and your financial estate. A trial at the courthouse is always an option for resolving your dispute. But if you can’t speak to each other, think about how uncomfortable you may be sitting in a public courtroom with your spouse. Whether you want to or not, you will have to talk about very private matters through questioning by the lawyers. If you perceive that your spouse is in control and has more of the power than you do, you will likely feel very intimidated to battle against him or her at the courthouse, regardless of who your lawyer is.
Family-law clients need to understand that trials are all about selecting a winner and a loser — not solving the problems. Even if you are on the winning end, you need to think about the long-term impact on the relationship with your ex-spouse, particularly if the two of you have children. How will you communicate post-divorce if you couldn’t communicate during the divorce process, and especially after you each aired your “dirty laundry” at the courthouse? A power imbalance that existed before the trial may be even worse after the trial, especially if the “in control” spouse won the trial. If you are interested in finding a way to resolve or minimize these issues, then you should consider mediation.
Mediation is an excellent opportunity to open the lines of communication with your spouse and seek to level the playing field. In the Texas model for mediation, the spouses typically appear for mediation at the mediator’s office with their respective attorneys. There may be periods of joint sessions with everyone in the room together, but more commonly, the mediation is conducted by using private caucus sessions, in which each spouse and lawyer is in a separate room. During the course of mediation, the mediator shuttles back and forth between each room.
Mediation provides an opportunity to be fully heard and feel that you have some measure of control over your case and your future. There are no rules of evidence in mediation; therefore, you have an opportunity to say anything that you believe is important to your case. There are many things that are important to a case that cannot be discussed in a trial because of the legal rules that apply. This is very frustrating to clients, and actually makes them feel more powerless. Sometimes, this is the client’s first opportunity to really talk about what is on their mind and to be heard. It can be very empowering for a client, and can clear the way toward finding a solution to a difficult issue.
Mediation will give you an opportunity to be heard and to feel like you have more control over the process. Take advantage of this time to try to maximize your best possible outcome, and structure a settlement that will pave the way for better communications with your former spouse during the future.
Jody L. Johnson is a partner in the firm of Allison & Johnson in Plano, Texas.