Articles Written By Professionals For Everyday People
We asked a few prominent divorce mediators in Illinois how to recognize and overcome some of the most common barriers to a successful mediation. Here’s what they had to say.
Although few mediators would argue that failure to disclose important information by either party could fatally impact the outcome of the mediation, how do you define “important information”?
Accurate and complete financial disclosure is “important information.” But it is not the only “important information” that needs to be disclosed. Successful mediation also depends on disclosing personal information in a safe and non-threatening environment.
In the meeting with each client privately during the first informational meeting, the client has the opportunity to tell the mediator what he or she wishes mediation to accomplish, as well as what potential problems of communication or issues may come up. Such issues could include domestic violence or intimidation, how to raise a particularly sensitive topic, or certain sensitivities or “hot buttons” the other may have which otherwise might lie undisclosed.
Sorting and identifying “important information” through private conversation with each client also helps the mediator to move mediation along productively, helping clients to separate and deal with genuine issues which might otherwise be lost in heated discussions, and crafting settlement agreements which reflect the parties’ genuine needs and circumstances. not be able to forgive and forget, but they need to put aside their emotions in a committed effort to resolve the outstanding issues.
Sandra M Rosenbloom concentrates on Mediation and Collaborative Family Law at her Northfield, IL office.
Barrier #2: “Litigation will give me everything I want.”
Often, people engage in the mediation process believing that they can use it as a method for pressuring their partners into acquiescing to their wishes. As part of this thought process, one or both parties mistakenly believe that if the other doesn’t agree, they can resort to the court process to have their desires met. Nothing could be further from the truth.
The court process is as susceptible to subjectivity as any other process. There’s no objective “truth” to be found. What many clients don’t understand, and what their lawyers often unwittingly fail to tell them, is that courts don’t follow identical paths. Judges are provided guidelines, and it’s up to them how to apply those guidelines to each situation, person, couple, and family. By way of illustration, many clients believe that if a property was purchased or acquired prior to the marriage, that property is deemed non-marital and exclusive to the court process. This is only partly true. Property purchased prior to the marriage usually is categorized as non-marital. However, the guidelines that courts follow allow them to consider the non-marital assets of one spouse in determining a fair allocation of marital property to the other spouse. Therefore, one spouse can receive a greater portion of marital property on the basis that the other spouse has more non-marital assets available to him or her.
Other variables that play a part in the court process are the personality and disposition of the judge, the effectiveness of each lawyer, and money and time constraints. Mediation, in contrast, is designed to allow the participants, who really are the only experts on their own situations, to be in the driver’s seat. Their sense of fairness is really the most accurate that can be found. A good mediator will point out to the participants that the notion of universal justice is a false one.
Robin Hoberman, president and founder of Solutions First in Chicago, is an experienced mediator and licensed attorney. She has dedicated herself to heightening the public’s awareness of how the mediation process works.
Barrier #3: When your ex behaves badly (e.g. rudeness, impossible demands, dishonesty)
The one thing you should keep in mind to help overcome the barriers that may arise during mediation is that it will take two of you to be successful — and two of you to fail. One party can’t act alone.
I’m not suggesting that one side should constantly give in, but rather that you both go into the sessions with the mindset that you are working toward a successful conclusion, not preparing for battle. Try to focus on your goals by keeping your discussions and remarks positive, always trying to stay on the topic at hand, and try not to respond to what you perceive as negative. An experienced mediator will also recognize your efforts, take action to steer the discussion away from a destructive course, and guide the disruptive party onto a more constructive path. This isn’t the place to assess blame but rather to honestly address the problems you’re experiencing and reach an amicable solution.
The issue of dishonesty, however, can be one that could destroy the process. Mediation requires that both parties be fundamentally honest. If a spouse is continually dishonest regarding finances or other issues, the mediator should take steps to correct this. Sometimes that entails speaking with each party’s legal counsel, or sometimes simply reminding the parties that honesty is required in mediation to correct the problem. If the lack of honesty creates an insurmountable barrier, the mediation may have to be terminated with the parties having to turn to more expensive and protracted legal proceedings.
Also, remember this is one way that mediation differs from what is perceived as battling through a “regular” divorce. You’ve chosen to resolve your differences in a civil manner and retain control of the outcome. Mediation will only be as successful as the parties involved make it.
Kathryn M. Somers is a trained mediator, arbitrator, and attorney in Northfield, IL and a respected member of numerous professional associations, including the Mediation Council of Illinois.
Edited by Jeffrey Cottrill