Since we have been working together as divorce mediators for almost 14 years, my partner Brian James and I have started to see divorce mediation themes which arise and enable us to advise our clients on best practices and ways to deal with certain issues and roadblocks in the mediation process.
Here are three divorce mediation issues we see most often:
1. Clients who stand firm on an issue and refuse to budge.
In my professional opinion, the biggest obstacle to success in divorce mediation is when a client stands firm on an issue and refuses to budge. My partner, Brian James, calls this “drawing your line in the sand” and refusing to move off your position. One example of this is insisting on 50/50 parenting time without understanding what that will mean for your children or your work schedule.
What if you travel for work and are not available to have a 50/50 schedule? What if your children are not flexible and really need to be at the same house in the same bed during the week? Until we talk through the issues and how this might affect your family, it makes no sense to insist on a 50/50 schedule. Hence do not draw your line in the sand until we discuss it.
Another example of this is wanting to keep the house when finances will make that impossible. While we understand that moving out of a marital home can be extremely difficult, our goal is to give our clients the best quality of life possible after divorce, and sometimes that means selling the home.
To help clients see the big picture and the specific financial numbers, we have them fill out a comprehensive Financial Affidavit, which is required to get divorced in Illinois. Oftentimes, when they see the numbers, their mindset changes, and they start to see that selling the home will actually give them a better post-divorce life. We ask our clients to come to mediation with an open mind, and be willing to negotiate every issue, instead of having a preconceived notion of what they want and why.
2. Clients who choose to listen to a litigious attorney instead of listening to their spouse, the mediators and their own heart.
Most of our clients come to us before either of them has hired an attorney. This could be because of financial reasons, or simply because they believe they are on the same page with many of the issues, they want to stay out of court and they want to be divorced without hiring attorneys.
While they will still need to go to court (one time only) to get divorced, we do not require them to hire attorneys. Why? Because if they are on the same page, we want to keep them that way. When clients hire attorneys, there is a chance that one or both attorneys may encourage them to litigate—fight it out and let a judge make the decisions. If that happens, the once amicable divorce becomes adversarial.
The best example of this is the movie, “Marriage Story.” A divorce that started out amicable ended up costing the couple their life savings thanks to litigious attorneys who preyed on the couple’s emotions.
If you and your spouse have made tentative agreements on issues, and we help you tweak them in mediation, leaving you both content with the agreements, isn’t that better than letting a judge decide what will take place in your future? You may have your heart set on a certain outcome for an issue, or you know that your spouse does, so we encourage you to go down those paths instead of turning an issue into a battle.
3. Clients who aren’t considering what’s most important to them, and instead are focusing on what they believe is the norm.
The third issue is not thinking about your priorities and needs, so you know what is most important to you. Just as important, what pieces of your final divorce mediation agreement do not really matter to you one way or the other.
Most people know when they are heading into a divorce what their priorities might be, whether it be keeping the house or having the children on a certain night of the week. We always encourage our clients to read the checklist of issues we provide, and to do their homework, so they have time outside of mediation to think about what they really need vs. what “most people do”.
They will win some issues and lose others but we want them to think that overall, it was a good solid agreement in the end. Divorce mediation is about compromise, and walking out feeling happy with the deal you got. We encourage our clients to think and communicate with each other about what is truly important to each person.
If they are each able to verbalize a list of priorities, we can then come up with a plan. Furthermore, in divorce mediation, couples are more likely to comply with their agreements after the divorce is final because they had a say in them! In other words, a judge didn’t tell the couple what they HAD to do, (which is what happens in litigation).
In closing, these three divorce mediation issues can often make the difference between a successful outcome in mediation, and a case that now requires attorneys and litigation. My partner Brian James and I work to make sure couples feel empowered by the decisions they make in divorce mediation, and that they walk out feeling confident that their divorce agreement fits their lifestyle and fosters a healthy, happy post-divorce life.
Ellen Feldman has been working as a mediator since 2007. A graduate of Smith College and Indiana University School of Law, Feldman previously worked as an attorney for 15 years practicing commercial litigation. Since 2006, Ellen has been a volunteer for The Lilac Tree, an Evanston based nonprofit organization assisting women through the process of divorce. Additionally, Feldman completed Family and Divorce Mediation Training through DePaul University Center for Conflict Resolution and Advanced Family Mediation. She is a court-approved mediator for the 19th Judicial Circuit Family Court of Lake County. Learn more by visiting the C.E.L. & Associates website.