Failure to check or dump emotional baggage
A successful mediation requires that both parties focus on their goals for the future. This is not easy in a divorce context. Often, the marriage has broken down due to a loss of love, respect, or trust. One or both parties may feel hurt, betrayed, or angry. They may instinctively react to each other by venting their anger about past wrongs that they believe the other party has perpetrated on them. This is especially true when one party has left the marriage for another person, dissipated assets, or otherwise acted in bad faith.
However, the mediation process will only be successful if each participant can approach difficult issues with a clear head. Both parties share a common interest in reaching a satisfactory and expeditious resolution of their issues and avoiding high litigation costs. They need to look forward, not backward. The more time they spend dredging up past wrongs in their mediation sessions, the more difficult and costly it will be for them to focus on their future goals. Each party may not be able to forgive and forget, but they need to put aside their emotions in a committed effort to resolve the outstanding issues.
Risa A. Kleiner, Esq. is a certified matrimonial attorney and accredited divorce mediator who has practiced family law exclusively for 12 years with Wilentz Goldman Spitzer P.A. in Woodbridge, NJ.
Failure to understand and prioritize your and your ex’s interests
One of the biggest mistakes you can make in preparing to negotiate a settlement with your ex is to think only about what you want. The key to successful negotiating is to prepare yourself by really thinking deeply about what is important to the other person — what they will claim they want, what they really want, what they’re willing to fight for.
The key to doing this is empathy. You know your ex: you’ve lived together and made decisions together. Here’s your chance to use what you’ve learned about them, good and bad. Try to imagine what they will be feeling when they negotiate with you. What motivates them? What makes them feel good? Will they just want to get it over with? Plan your strategy with these elements in mind.
If you prepare in this way, in addition, of course, to clearly prioritizing what you must have and what you’d be willing to trade or give up, chances are the negotiations will go more smoothly than you can imagine.
Carol A. Butler, Ph.D. is a psychotherapist and mediator in private practice in Manhattan. She is the co-author of The Divorce Mediation Answer Book.
When your spouse misbehaves or acts out in mediation
First of all and most importantly, remember that mediation is a voluntary process. You don’t have to stay. If the misbehavior of your spouse rises to the level of abuse, my advice is to leave. No dispute resolution process is worth subjecting yourself to an intolerable situation.
That said, where the misbehavior is irritating or annoying but not abusive, there may be an opportunity for you. Ask yourself if you’re willing to accept the challenge being presented of not becoming reactive or retaliatory. This is hard. Your spouse knows your buttons. Still, if you can find your own center and let go of the need to strike back, it can be a tremendously empowering experience for you. Try to remember that your spouse is also frightened. As much as anything else, the outbursts are expressions of fear, the anger often is a cover of sorrow, and the reason your spouse raises his or her voice so much is because she or he thinks you don’t hear him/her. Underneath acting-out is always an expression of concern. Try to identify the concern and address it: for example, in response to, “She thinks she owns the blankety-blank kids,” try: “Tom, I know you’re worried about our children and your role in their lives. There is nothing I want more than for our kids to have two fully involved, participatory parents, and I want you to know that I’ll sign an agreement which reflects that.”
Hopefully — and my experience suggests that this is the case — by modeling behavior that constructively addresses legitimate concerns rather than being reactive, even your very difficult spouse will begin to temper his or her own behavior, and the process will move forward toward solutions that work for both of you.
Barry Berkman practices family law and mediation in private practice in New York City. He is a partner with the law firm Berkman, Bottger & Rodd and an adjunct professor at the Benjamin N. Cardozo School of Law.
Lack of preparation by clients
Lack of preparation by one or both parties can be the bane of a mediator’s job! It has been my observation in almost 20 years as a divorce professional that the most common obstacle to settling divorce cases, both in litigation and mediation, is the failure by one or both parties to develop a “settlement model” (SM) in which he or she has confidence. An SM is an outline that a party has developed of what a settlement needs to look like to be acceptable to him or her. Without a well considered SM, a divorcing party is left with nothing to rely on in assessing a settlement proposal, other than his or her blind trust (or lack thereof) for the other party or his or her own attorney. The response will likely be, “No!”
Mediation is a rational process based on self-determination (the parties’ right to make decisions concerning process and settlement) and self-empowerment (nurturing the ability of the parties to make considered decisions for themselves). Parties should be making decisions about the divorce based on a well thought-out SM reflecting the party’s needs and those of the children. Such an SM must be based on adequate preparation, including collection of information, professional advice, and adequate deliberation of reasonable needs and preferences for life after the divorce. Adequate preparation in these domains, including spending the time necessary for the party to imagine in detail what his or her life will be like after the settlement, will allow the creation of the SM, which will be the yardstick by which settlement proposals are measured. Your mediator should help structure your development of your comprehensive SM.
Douglas Schoenberg is an accredited divorce mediator (NJPAM), attorney, practitioner member of the Academy of Family Mediators in Summit, NJ, and a member of Divorce Magazine‘s Advisory Board.
Fear of change
Divorce means change. Lives, families, finances, hearts, and homes are split apart. This much change can be very scary. In fact, divorce can feel as if a revolution is destroying your current life as you know it.
In a traditional litigated divorce, you’re placing the ultimate decision-making authority with a judge. A stranger in a black robe determines how your present family and finances will look tomorrow. The judge rules, and you have to live the life he has chosen for you. Yes, you can appeal his decision, but ultimately, you will rarely determine your own outcome.
Divorce mediation helps you and your spouse make decisions for yourselves that will work for you and your family. With the help of a mediator, who is a highly skilled professional facilitating your divorce negotiation, you can create your own tomorrow.
Like all change, with divorce you have a choice. You mediate your divorce and develop your own opportunities, or you can have a stranger decide for you. Both options require an enormous transformation in your life. With mediation you retain the power to make choices. You decide what works best for you.
Susan D. Romer is an attorney-mediator with Harmonic Resolutions in New York City.