What goes on behind closed doors in mediation?
A mediator will often start the process by asking you to write out your goals—what you would like to come away with. You will be asked to anticipate such problem areas as custody or support. You might be asked to set forth your assets and liabilities in a sworn (notarized) statement, just as you would have done with an attorney. This gives everyone involved a clear idea of what you're dealing with and how far apart you really are.
The mediator will work with both of you to divide assets, allocate support, and resolve custody and visitation or any other disputes. The mediator should not advocate one side over the other but should help you both by noting where compromise might work or by coming up with new solutions.
If, at any point during the process, you don't like the way things are going, feel free to consult with an attorney. If you need to consult with your lawyer more than once or twice, however, you might be better off stopping the mediation and just using the attorney. After all, why pay for two professionals?
What if one of you really likes the mediator you're thinking of and the other doesn't? Don't be pressured. If you do not feel entirely comfortable, turn the mediator down. Besides, it's dangerous to start out with someone one of you likes better. As in the case of choosing an attorney, the mediator should be someone competent who you both like and feel relatively comfortable with.
In any event, after you resolve all the issues, the mediator will draft a written agreement and suggest that you have it reviewed by an attorney. Your attorney will want to make sure that all possible issues have been covered. For example, some people don't realize they're entitled to part of their spouse's pension or other employment benefits. Maybe the mediator overlooked this, or maybe you discussed it but you decided to waive any right to the pension or plan. Either way, your lawyer should point out your rights and suggest that you pursue them or waive them in writing. The agreement is then ready for signing by the parties and then brought before the judge for signing.
Can you go through the mediation process without ever using a lawyer? Possibly. But if you had enough issues to see a mediator, you're probably better off spending a little more on an attorney and making sure that everything is okay.
If you dislike the result of your mediation, don't sign the agreement. Say that you and your spouse have just spent four months and $2,000 on mediation, and as the process nears an end, you just don't feel comfortable. Perhaps you even feel the agreement is being “shoved down your throat.” Maybe you began to think the mediator was siding with your spouse from the beginning, but you were afraid to say anything, or you feel as though your spouse is “pulling a fast one.”
If there is some legitimate basis to your feeling, do not sign the agreement. Seek advice from an attorney. On the other hand, if the real problem is that you're just not ready to end the marriage, or you still hold the faint glimmer of hope that the marriage can be saved, you need to discuss these feelings with a therapist. The truth might be that you'll never be ready to sign an agreement, no matter how fair. If you are consciously or subconsciously subverting the negotiation process, don't take comfort in the thought that your spouse won't be able to get a divorce. You will simply be laying the groundwork for a litigated divorce. If you are in this situation, a consultation with a mental health professional might help you avoid the economic and emotional stress and time of going to court.
If You Think Your Spouse Is Lying
The law is not the only consideration when trying to reach a settlement. If you can put any anger you might have aside, you might be able to appeal to your sense of fairness. The mediation process allows you to come to a settlement based on knowledge that only you and your spouse have about each other's temperaments and financial and emotional situations. If you can see past the breakup, both parties might come away from the process with less damage than simply relying on the laws of your state.
It might be your suspicion or your experience with your spouse that leads you to believe he or she is covering up the truth about finances or other matters. How is it possible to know, and, if it's true, how is it possible to continue using mediation as the vehicle to settle your case?
In a litigated divorce, the process of discovery is supposed to reveal the assets of both parties. This is a mandatory process that yields evidence admissible in court. During mediation, however, discovery is not required. The divorcing couple relies on mutual trust that the other will tell the truth and bring in all documents showing financial status.
How can you make sure that your spouse is telling the truth? If you are suspicious, hire a forensic accountant to review the financial papers and books of your spouse, especially if you are not a financial expert. Not only will a professional be able to notice a deficiency, but the very fact that an accountant is scrutinizing your spouse's affairs will help to keep him or her honest during the negotiations.
Reliving Old Patterns During Your Mediation
It may not be surprising to you to hear that the patterns of interaction that typified your marriage will characterize your behavior as a couple during mediation. It is the job of a skillful mediator to help the couple break the pattern that put one of the spouses in the driver's seat and give strength to the other spouse. Accomplishing this doesn't mean the mediator is siding with one party or the other; instead, it is the only way that a fair settlement can be established.
Rebecca did not want to mediate her divorce with Michael, but he insisted she not hire an attorney and give mediation a chance. She hesitated for a long time, but finally gave in, as was usually the case in their marriage. Once at the mediator's office, Michael took center stage in presenting the “facts” to back up why he wanted a divorce and how the settlement should look. Rebecca disagreed with Michael's version of the “facts” but was reticent to speak up.
The mediator was skillful in noticing the pattern of interaction between the two and encouraged Rebecca to speak her mind. This skillful mediator simply would not allow Michael to gain the upper hand or let a subject drop without a full hearing from both Rebecca and Michael on all issues during the negotiation sessions. As a result, the mediator was able to facilitate a fair settlement.