MEDIATION
BARRIERS
We asked several prominent divorce mediators how to recognize and overcome some
of the most common barriers to a successful mediation. Here's what they had to say.
Edited by Jeffrey Cottrill
| Barrier #1: Failure to
disclose important information |
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 Rosenbloom concentrates her
practice in matrimonial and family law and mediation in Highland Park, IL.
| Barrier #2: 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.
| Barrier #3: 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 in Woodbridge, NJ.
| Barrier #4: The myth
that litigation will give you everything you want |
I constantly counsel clients to get a
reality check when it comes to expectations of divorce litigation. In fact, litigation can
be unpredictable and an enormous emotional and financial strain on both parties.
Litigation should be the court of last resort.
There are certainly situations when
litigation is the only practical recourse in dissolving a marriage, usually when other
strategies have been explored and exhausted. But when the only alternative is litigation,
one should not and cannot expect it to be a magical elixir.
There are always disappointments in
litigating divorce, usually very painful ones for the ex-partners and their children. Yes,
there are many examples of litigation that result in one party receiving all that was
requested. But they are hardly the rule. There are choices that can lead to more
satisfactory conclusions, ones that can be fair to all family members and diminish the
agony.
Without question, the mediation process
is preferable, since it typically obviates many of the burdens associated with litigation.
It allows a third party to work on a binding resolution without the costly time taken by
litigation that often involves division of property, child custody, and support. Mediation
allows spouses, their attorneys and and a mediator (possibly retired judge, disinterested
family law attorney or a therapist) to privately resolve the issues and expeditiously
derive a final agreement that will be endorsed by the court.
You may think you have a strong case for
litigation, but you should remember such actions average 20 months and can cost six
figures and beyond. There's a better way.
Stacy D. Phillips is founding partner of
Phillips, Lerner, Lauzon & Jamra, LLP , a prominent family-law firm in Los Angeles.
| Barrier #5: 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.
| Barrier #6: 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.
| Barrier #7: Failure to
understand and prioritize the interests of you and your ex |
One fundamental barrier to a successful
outcome of your mediation is the failure to understand the underlying interests behind
your and your spouse's positions. If you fail to consider and communicate your interests,
you may find yourselves at a dead end, with each party entrenched in their positions. By
broadening the discussion to your interests, you can move beyond the the impasse to
looking for solutions to address both your needs.
The difference between arguing positions
and addressing interests is illustrated in the following example: Two patrons studying at
a library are arguing over a window. One person wants the window open, the other wants it
closed. When the librarian asks the first why he wants the window open, he states he wants
fresh air. The second patron says he wants the window closed so he doesn't have the draft.
The librarian then resolves the argument by going to an adjoining room and opening the
window. Thus, the patrons have fresh air without the draft.
Before you engage in mediation, it is
helpful to make a list of your specific interests. Your most powerful interests are basic
human needs: security, economic well being, a sense of belonging, recognition, and control
over one's life. Think about your spouse and consider the interests he or she has as well.
Talk about your interests during
mediation. This will help you and your spouse to stay focused on the future. Be specific
and vivid in talking about your interests. Doing so will impress the other party with the
legitimacy of your interests. At the same time, acknowledge his or her interests as part
of the equation. If you want the other side to appreciate your interests, show that you
appreciate theirs. You will find that you make the most progress in mediation when you
firmly state your interests, yet remain open as to how to address them. Like the patrons
in the library, you must remember there is more than one way to address your interests,
and some solutions are preferable because they address both parties' interests.
Debra N. Caligiuri has been practicing
law for 12 years. Her office is in Encinitas, and she practices family law and mediation
exclusively. |
