If you’re getting divorced, here’s what you need to know about mediation to make better decisions.
I recently attended a 40-hour divorce mediation training. Forty hours is the requirement in my state to practice as a divorce mediator. That’s not why I did it though. As a divorce coach, many of my clients are going through mediation and I wanted to support them as best as possible during the process. I truly believe that mediation is a better way to “do” divorce. And I believe that because I walked out of my first mediation meeting and never went back.
I had to learn the hard way that mediation was the kinder, gentler version of what we think of when we think of divorce. Don’t get me wrong. Mediation is still an emotional rollercoaster, but with mediation, you’re on the kiddie version versus The Tower of Terror. And like the kiddie rollercoaster, mediation feels slow, but it’s a much shorter ride and significantly less expensive than going through lawyers. I know now that walking out of mediation was the worst mistake I made in my divorce. Instead of going through a 3 – 6 month mediation process, my divorce took 2 years. And mediation would have cost me approximately $5,000 (in my state) versus the $45,000 that my lawyers cleaned out of my Roth IRA. Yes, clearly the worst mistake – but I didn’t know anything about mediation and no one gave me the information I needed (including the mediator I had hired) to help me make a better decision.
So, here is what YOU need to know about divorce mediation to help you make better decisions. Don’t make the mistake I did!
1. Mediation Is The Best Option
A generation ago, there were only two ways to get divorced and both involved lawyers. Today, there are actually 4 paths you can take to get divorced. Litigation is the one most people think of. A litigated trial is the Kramer vs Kramer version where lawyers are battling it out in a court room. Litigation is the bread and butter of divorce attorneys because it can take years for the case to go to trial, all at a hefty billable rate. A friend of mine went through a litigated divorce trial – in his case, it took 9 days in court and over a million dollars to get divorced. AND both parties were at the mercy of what the judge decided. Crazy, right? Clearly, the cases that get litigated are indicative of high emotion and a willingness to sacrifice the future (and a ton of money) over hurt from the past. The next most common divorce option is using your respective lawyers to negotiate an agreement. Again, this option can drag on a lot longer and cost a lot more than you’d like. Additionally, you are relying on your attorney to get you the best deal, which of course, they are happy to do -- at their own pace -- at $500/hour. The negotiation is largely out of your hands as both attorneys are negotiating an agreement based on their experience of what a court will consider “usual.” And of course, the court system tries to drive everything to a happy medium, even if it is completely unsatisfactory to both parties. Another option gaining more popularity today is collaborative divorce. In this process, each party has an attorney, but those attorneys are empowering their clients to negotiate for themselves in 5-way meetings that include the two parties, their attorneys and a coach neutral (who keeps the process going). Collaborative divorce puts more control in the hands (and voices) of the divorcing couple to craft an agreement that will work for their family. Unfortunately, that control comes at a fairly high cost considering all the people involved in the process. Mediation is the least costly and time-consuming option since it involves just the divorcing couple, a mediator and whatever time it takes to reach an agreement. And as I’ll discuss next, it gives you more control and latitude over what goes into your divorce agreement.
2. Mediation Gives You Control
Mediation is the only option you have to negotiate whatever you want in a divorce agreement – as long as you both agree. The court encourages mediation since these agreements are less contested and don’t bog down the system (any further than it already is). And some states even require mediation as the first step in any divorce proceedings. In mediation, you are encouraged to craft an agreement that works for you and your family moving forward. Only you and your soon-to-be-ex spouse can know what that is – not your lawyers and not a judge. And rather than being forced into the court’s concept of what is “usual”, you can be as creative as you want with it, as long as it demonstrates fairness for both parties. And while the mediator gives you a general sense of what is “usual” for the court, know that this is the only option where you can color outside the lines as long as it makes sense and is equitable. The role of the mediator is to walk you through the process step by step, so that you can make small agreements along the way which eventually add up to become your divorce agreement. The mediator must remain neutral in the process to ensure that the final agreement will be considered fair for both parties and acceptable to the court. Faced with the shock of divorce, it might seem easier to throw the whole thing over the fence to a lawyer – you can – but know that it will be significantly longer, more expensive and you might not end up with the result you wanted. Mediation puts more control and latitude in your hands than any other divorce option -- without the undue influence of lawyers and the court system. And mediation helps you take charge of your divorce – your life – with intention and purpose.
3. Not All Mediators Are The Same
I discovered in my divorce mediation training that no two mediators are the same in terms of style or training. Firstly, know that not all mediators are lawyers. Some are and some aren’t. Why does that matter? Well, if you don’t work with a mediator that is also a lawyer, they can only create a memoranda of what you agree to. You will need to have a lawyer actually create and file the divorce agreement for you. In some cases, a lawyer for one party will create the divorce agreement and the lawyer for the other party will review it. In any case, it will increase the cost of mediation to some small degree. There are also mediators who are lawyers. While this might seem like the way to go, realize that he/she might not have a style that you are comfortable with given their litigation training. It really makes sense to meet with several mediators to find the right fit for you – in terms of training and style. The most important thing a mediator has to give you is their neutrality. If there is any doubt in your mind about your comfort level or their neutrality, then find another mediator. I definitely experienced this issue, and yet, it never occurred to me that I could go find someone else that would be a better fit. I just ditched the whole process instead – big mistake.
4. Mediation Re-Defines Your Relationship
It might be daunting to think about having to negotiate your divorce with your spouse. There’s a lot of emotion that comes up in mediation – fear, anger, sadness, distrust. This is your opportunity, though, to take control of your life and ask for what you want. And the mediator is there to break down the process into smaller bite-sized pieces so the process is less overwhelming. The mediator is also there to ensure that there is balance in the negotiation, that no one voice is being unheard because the other voice is louder. If necessary, a mediator can also caucus the mediation by keeping you in separate rooms during the negotiation. Regardless, the mediator keeps the process moving – with balance -- towards these smaller agreements. Even if this concept of balance was missing from your marriage, trust that it will be there in mediation. And this balance of power becomes the fertile ground from which you and your spouse can start to re-define your relationship – as co-parents or ex-partners. As co-parents, this new type of communication between the two of you will be critical in still moving forward as a family (which is so necessary for your children), regardless of your divorce. You created your family together and mediation is an opportunity to co-create what your family will look like now. Divorce is not the end of your family – it’s just a transformation into something new. Be intentional about how you want to transform it together.
5. Mediation Isn’t For Everyone
Mediation isn’t all rainbows and unicorns though. It’s gut-wrenching on a number of levels. It is divorce, after all. Mediation can only work if both people want to negotiate an agreement. And wanting that agreement is often the only glue that keeps both people in mediation considering how challenging it can be. So, what do you do if your spouse doesn’t want a divorce? Typically, the person initiating the divorce has already developed more emotional distance and lived through the 5 stages of grief (denial, anger, bargaining, depression, acceptance) – putting them way ahead of their spouse emotionally, who is probably still struggling with denial and anger. It’s important for that spouse to understand the divorce is going to happen, whether they like it or not, and they can either choose the kiddie rollercoaster or the Tower of Terror. Given a better understanding of their options, people typically choose the kiddie rollercoaster knowing that the end result will still be the same. And yet, there are still some people who can’t get past their hurt and anger to participate in mediation. It’s unfortunate since the Tower of Terror is only a fun ride at Disney.
6. Maximize Your Mediation Time
You can make mediation faster, cheaper and more efficient by being as prepared as possible before your first visit. There are mediation checklists that you can find online that illustrate all of the different issues that will be covered. Understand what you want in each of these categories. Also know what you’ll compromise on, if necessary. The more clarity you have before you start mediation the better. And if you can encourage your spouse to do the same, it should make for a more efficient negotiation. In some cases, you will need the mediator to guide you through your options. That’s ok, that’s what they are there for. Mediation typically starts with child custody and the parenting plan (if you have children) before moving into your financials and the division of assets and debts. If you can, try to start on your financial statement as early as possible. It takes some time, but believe me, you will have a crystal clear understanding of what you can and cannot have moving forward. Most of your negotiation will take place within the context of that financial statement. The point here is to be as prepared as possible!
Divorce is a scary, unknown process for most of us, but you can silence much of your fear around the process by getting informed, taking advantage of free consults with lawyers and mediators and creating a plan for yourself. As a divorce coach, I help people create that vision of what they want for themselves – now, in this process and in the future. It gives them clarity and drives them forward through this process with positive energy, instead of fear. And having been through this painful process myself, I do everything possible to ensure that my clients don’t make the mistakes that I did. I know I needed to have these experiences to get to where I am now and do what I do. My sincere hope, though, is that my experience and this knowledge will help you achieve what you want in your divorce.