Question & Aswers about Divorce Mediation

Emotions and Mediation

Without your accustomed underlying rationale. This can be frustrating and confusing.

You or your spouse may find that feelings of anxiety over the potential loss of financial security, extended family, home, and friends have a quality more like childhood panic than adult concern, because these losses represent a temporary loss of the “self” with which you have become comfortable. There may be feelings of betrayal, rage, or helplessness. If the two of you become involved in an adversarial process, these feelings may be intensified because you will be dependent on your lawyers’ strategizing.

A mediator understands this state of mind and will keep the negotiations non-confrontational and structured. With your mediator’s assistance, you will both be able to speak for yourselves and plan your individual futures.

The negotiation techniques we discuss will be helpful with this process. We will answer questions about how to overcome emotions that interfere with negotiations: how to make trade-offs so that you get what you really want; how to get a reluctant spouse to mediate; how to overcome impasses; and how to develop better ways to communicate so that you can have future discussions concerning such issues as parenting arrangements with less conflict.

How is negotiating my divorce agreement different from other types of negotiations?

Because you are negotiating something very complex and personal, the stakes are higher than if you were negotiating a businessmatter. Your relationship has probably been quite emotional, both affectionate and angry, and facing separation may elicit some painful and perhaps unanticipated responses from both of you.

If you have children, you cannot walk away and never see each other again. You will be negotiating the terms of an ongoing relationship that will affect both you and your children for many years to come. Under these circumstances a win/lose approach cannot work.

How do I get what I want? Are there rules for negotiating?

Negotiation is about problem solving. There are no absolute rules, but there are techniques to be used thoughtfully.

You are more familiar with the process of resolving conflicts through negotiation and compromise than you may think. You have negotiated with friends and family about all sorts of choices affecting more than one person. Think about what you have learned about yourself as a negotiator in your prior experiences resolving such common conflicts as scheduling, meals, curfews, hairstyles, holidays.

These are some of the basic ideas to keep in mind when you negotiate:

Before mediation sessions begin

  • Do your homework in advance so that you are preparedwith information and questions about the issues that concern you.
  • Think about what is really important to you, and think about trade-offs. Don’t get greedy, but don’t fail to recognize if you are in a poor bargaining position on some issues. Keep in mind that it is unlikely you will get everything you want, whether you use mediation or litigation. If you remember this, you will have a much easier time considering alternative proposals.
  • Prioritize what is important to you. Look at the whole picture. Don’t limit yourself to one issue. Be aware of what you value most.
  • Assess and strategize, anticipating what your spouse may want or must have.
  • Plan some concession points. You may be willing to give up money for some other benefit, or some other benefit for money.

During mediation sessions

  • Be patient. Negotiation is a process that takes time.
  • Focus on the future. Don’t dwell on past issues that won’tcontinue once you are divorced.
  • Begin with a reasonable position. If you are unreasonable at the outset, you risk an impasse.
  • Stay with the agenda. Don’t get stuck on irrelevant issues.
  • Don’t formulate a reply without listening carefully. Takenotes. Be certain you understand what is said. Clarify by asking questions of both the mediator and your spouse.
  • Don’t be confrontational, and avoid verbal put-downs. Focuson the problem instead of on who’s to blame.
  • Do not escalate. If your spouse attacks you verbally, don’ttake the bait. Stay focused on your future goals and onresolving the problems that stand in the way.
  • Avoid treating everything as equally important. Probably,the antique clock and the pension plan are not of equal value to you.
  • Generate solutions. When you say no, try to suggest another solution. You don’t have to agree to anything that you think is unfair, but you should consider every proposal seriously and seriously consider how it can be modified. Is there something else that might make the proposal more appealing to you?
  • Review any documents or information provided during mediation. Be certain they are clear and complete.

Remember, mediation goes through stages. Often when the easier issues are settled and the end is in sight, there will be more motivation to compromise. As mediation sessions end, continue your homework. Review the proposed agreement, making sure that you have read it carefully and that you understand it.

Be certain that your final agreement is clear and enforceable. An agreement to negotiate about an issue at a future date is not enforceable unless there are clear guidelines about who will make the final decision and what criteria will be used.

Negotiation is a process of making trade-offs, but you must keep in mind as you negotiate that there can be legal or tax consequences of certain decisions you make. The general idea is that in order to get something you want, you give up something, perhaps even something to which you are legally entitled.

Some examples:

  • The pension in exchange for the house
  • Furniture in exchange for the computer
  • Heirlooms in exchange for more furniture
  • Payment of less child support (non-tax-deductible) in exchangefor payment of more alimony (tax deductible)
  • Payment of ex-spouse’s college or graduate school education inexchange for no alimony
  • Payment of ex-Spouses education in exchange for fewer yearsof alimony
  • Payment of more alimony in exchange for the tax deduction
  • Payment of more support to the parent with primary physicalcustody who agrees not to relocate
  • Relocation of the parent with primary physical custody in exchange for less child support (since the noncustodial parent will pay more for frequent visitation and transportation costs)
  • Relocation of the child in exchange for more and longer visitationand payment by the custodial parent of certain travel costs
  • Fewer overnight visits during the week in exchange for moreweekend visits.
  • Payment of all unreimbursed medical expenses in return for thechildren’s dependency deductions and child credits.
  • Dependency exemption and child credits in return for paymentof more college tuition
  • Payment of ex-spouses interest on a second mortgage inexchange for delaying the sale of a home and remaining in thehome for a specified period of time
  • Remaining in the home for a period of time in exchange for little or no alimony
  • Remaining in the home for a period of time in exchange for not including overtime income as part of calculation for child support
  • Additional payments from a business when it nets a specificsum in exchange for not dividing the business
  • Share of a pension in exchange for payment of educationalexpenses
  • Share of a pension in exchange for start-up business expenses

How can I negotiate when I don't want to compromise?

We can understand that winning it all-particularly if you feel you are in the right—is very satisfying. Winning feels good.

The problem is, decisions made by you and your spouse in mediation or by a judge seldom give everything to one person and nothing to the other. So, even if you’re in the right, if you are unwilling to compromise, you run the risk of losing what is most important to you, and probably at great cost in terms of time, money, and emotion.

Instead of worrying about compromises, think about options. How many different ways can you have it your way? What don’t you really want or need that you can consider trading for what you really must have? And most important, think about what you really want.

A mediator worked with one couple in mediation where the father insisted on being the “school-night parent” (the one with whom the child spent school nights) and was prepared to put up quite a fight to get that access. But when the mediator asked exactly what hours he wanted to spend with his daughter, it turned out he had only two weeknights available, and one of those evenings he was only available after 7 P.M. Once the father explored the optionswith the mediator, he decided it was more important to have more quality time than busy evenings with his daughter, and he agreed to lengthy weekend visits instead.

If my spouse and I are at an impasse on a particular issue, how will mediation help us resolve it?

We need to look closely at the reasons you can’t agree. Are there emotional issues? Is there a fear of committing to a different way of doing things? Are you concerned that you may waive some legal rights? Or do you lack sufficient information?

People often have a period of extreme emotional upset when a marriage is ending. Severe anxiety and depression are not abnormal at this time. If you are at a stalemate because of an emotional reaction, a few sessions with a therapist may help you to clarify and moderate your feelings so that you can think more objectively.

Are you afraid to commit to a change that might not work out? Are you afraid to formalize changes in your relationship with your children? We might recommend that you experiment; try something for a month or two. Agree that you may do something totally different if the trial plan doesn’t work out. For example, you can try out a parenting plan and then, in a mediation session, you can make adjustments that are an outgrowth of having some real experience with shared parenting.

Sometimes people are afraid they will permanently waive their legal rights if they make a decision, and as a consequence they become immobilized. In such a situation, you might try to negotiate a temporary arrangement, with a clear understanding that this will not set a precedent for the future.

In another mediator’s case, although the husband wanted to move out, he was afraid to do so for fear that he would be accused of abandonment and that he would lose any right to the house and to shared custody. The wife agreed to sign a temporary agreement stating that his move would not waive any of his rights.

Sometimes lack of sufficient information creates the impasse. Often the mediator can provide the needed information. If not, the mediator may recommend an opinion from someone both parties agree upon as an expert. This expert might be a child psychologist, a financial planner, a neutral attorney, or an appraiser. And you both can agree in advance that the expert’s opinion will either be simply advisory (you will take it into consideration) or that it will be binding (you agree to accept the expert opinion to break the impasse).

The mediator’s role is to help the couple think through their respective positions regarding each issue. We help to generate options, and we take an active role in eliminating an impasse if it occurs.

Why is it so difficult to separate or divorce?

Do both of you find it difficult? If so, you may want to try couples counseling before proceeding with divorce. However, if only one of you is interested in counseling, then it is probably time to come to terms with the separation.

We recognize that there is often ambivalence about saying good-bye. This is usually a factor when couples in mediation have difficulty agreeing on minor issues, seem to connect intensely through anger, or, when the agreement is almost complete, seek to change some of the terms.

During the process of mediating the separation agreement, your fears will begin to subside as you learn to negotiate constructively and to resist your impulses to engage in emotional arguments. Mediation will restore a sense of your own power and autonomy. You will learn not only to assert your needs but to plan for and develop control over your future.

We disagree on so many things. How will we ever negotiate a settlement?

Being unable to agree is probably a major reason you are planning to separate or divorce. Throughout your marriage, you may have been disagreeing openly and feeling hostile to each other, or you may have been holding back your hostility to avoid a confrontation, but you were probably having those disagreements silently in your own mind.

If communication has broken down but you want to make a settlement, you will find mediation extremely helpful. The mediator will help you communicate about the necessary issues and will stop both of you from rehashing past disagreements. She will keep you focused on your individual and separate future plans and will strongly encourage you to let go of the argumentative habits that didn’t work in the past.

When we argue, my spouse always wins. How will I be able to negotiate under these circumstances?

If you feel overpowered by your spouse, you need to really examine why your spouse always wins arguments with you.

  • Does your spouse win because you’re uncomfortable arguing?
  • Do you feel guilty?
  • Are you afraid of confrontation?
  • Are you afraid of losing control?

Your mediator’s role is to keep the discussions calm, to help you both assert yourselves without losing control. Remember, the purpose of divorce mediation is to negotiate a settlement of the practical issues, not to win an argument or to place blame.

  • Are you afraid things will get violent?
  • Does your spouse threaten you?

Don’t agree to mediate under these circumstances. The only exception is in some court-ordered mediation programs in which they have special protective arrangements (security guards, separate waiting rooms, controlled departures, etc.) for couples where violence is an issue This is obviously not possible in a private mediator’s office, which is why we don’t recommend it.

  • Do you stop arguing because you believe yourspouse knows more about an issue?

Here mediation can be helpful. Your mediator will assist you with negotiating techniques and with information. Mediators have many ways to empower the weaker party at any point in a negotiation, and remember, each couple relates differently on different topics. In some areas you may feel less knowledgeable, but in other areas you will feel confident and your spouse will be the one who is unsure.

Your mediator will remain in control of the process and keep the focus on the future. Clarification will be encouraged, confrontation discouraged. We support the expression of ideas, but we do not permit disruptive behavior.

I'm concerned my spouse won't be an adequate parent without my help. How can I negotiate a parenting arrangement?

Mediators often work with parents who have been responsible for most of the decision making for the children and who voiceserious doubts about the other parent’s ability to care for the children alone. Will the other parent pay enough attention to the children, feed them adequately, see that they’re bathed and put to bed on time? Will they provide enough consistency and discipline?

Sometimes these are realistic concerns that the two of you can talk about when you negotiate your separation agreement. Your parenting plan may need to be more specific and comprehensive. In order to encourage your spouse to be open to your proposals, it is important to try to make concrete suggestions during the negotiations, without blaming your spouse or making angry references to the past.

In other instances, concerns about the other parent’s inadequacy may really be underlying feelings of anger. Do you identify with any of these feelings?

  • You rejected me, now you want to take my childaway.
  • You didn’t have time for me, and you don’t havetime to be a parent; you want joint custody to punish me.
  • You were a lousy spouse and you’re a lousy parent.
  • I don’t want anything to do with you, and I don’twant to deal with you about the child.
  • I’m the only good parent, and without you causingproblems, everything will be fine.

Take a few minutes and think about whether any of these feelings apply to you. Is your anger getting in the way of accepting your spouse’s different style of parenting? See also Question 20 in Chapter 3: My spouse and I have different attitudes about parenting.

Try talking over your feelings with your mediator. You may need to be more objective about these issues, and, if possible, move them out of the foreground so that you can work out a reasonable arrangement in mediation. Remember, if you are unsure about the parenting arrangements, try them for a while beforesigning the agreement. That way, if you need to, you can come back to mediation and work out appropriate modifications.

In one separation mediation the wife, who was a licensed nutritionist, would not agree to joint custody until her fears about adequate care for the children were addressed. Although her husband felt that he could quite adequately take care of their children, he agreed to include in their agreement that she could mail information about nutrition to him every other week, and that he would read it upon receipt.

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