When Should You See A Mediator?

It's never too early (or too late)

by William H. Donahue, Jr., Esq., APM

People should start mediation as soon as they have a problem they can't resolve by themselves. That happens to most people as soon as they decide to get a divorce.

Look at the following couple. They are the kind of people who are least likely to mediate their divorce even though they stand to gain the most by doing so. Let's call them John and Jane. They have been married for 20 years. Their children are in high school. They both have jobs and busy lives. They don't fight much, but they don?t talk much either. They both appear to be happy with their marriage.

But appearances are deceiving. After dinner one night John tells Jane he wants a divorce. He is seeing someone else. Jane watches him talk but barely hears a word as the bombs go off in her head. In time, she will admit to the emptiness of her marriage, but right now her world is falling apart.

At this point, John and Jane have to make one of the most important decisions of the entire divorce process. Do they each hire an attorney right away and begin the litigation process or do they go to a mediator?

There is a crucial reason why they should see a mediator before hiring attorneys: the high level of anger they feel toward each other. Their anger puts them at the greatest risk of being drawn into a bitter and expensive litigated divorce.

In this scenario, John is what mediators call the initiator. He wants a divorce. He blames Jane for the failure of their marriage and feels that she drove him to someone else. He is willing to make concessions to get the divorce finished, but not many, because he thinks that if Jane had been a more attentive wife, none of this would have happened. Jane is what mediators call the non-initiator. The divorce was not her idea and she hasn't had time to adjust to the idea. Fear, shame and anger dominate her emotions. She wants her marriage back, but at the same time she wants revenge. She wants an attorney who will make John sorry he ever looked at another woman.

Their emotions are real and legitimate, but the course their emotions are telling them to follow will not serve their real long-term interests or those of their children. John's attorney would have to react to the things Jane wants to do and vice versa. Their actions and reactions would create a hostile and adversarial relationship that would probably destroy any hope of an amicable settlement, to say nothing of the relationship they will need to maintain if they hope to be effective parents.

In the long run, what John and Jane both need is emotional stability and financial security. They want what is best for their children. Mediation, started as soon as possible, and certainly before any legal action is taken, would enable Jane and John to maintain communication. This is a critical difference between mediation and litigation. Mediation would allow both of them to work through some of the anger they are feeling, gain control of their divorce, and reach a settlement that would lay a foundation for their separate futures.

It's Also Never Too Late
It is a misconception that once you are involved in litigation, it's too late to mediate your divorce. As a mediator, I work with couples at every stage of the divorce process. Many people come to mediation to get out of litigation that is ruining them financially and emotionally.

When cases become hostile, a good divorce lawyer should discuss mediation with his or her client. Some lawyers already do this. I've seen how the escalating cycle of first-strike and retaliation can be broken when people sit down and talk face to face. It sounds strange, but during a long, bitter divorce, the parties begin to seem like abstracts to each other rather than someone they once shared a life with. When that happens, people become capable of insensitivity and cruelty on a level that normally would be unimaginable to them. Mediation reminds them divorce need not be a war against a faceless enemy.

I once mediated a couple who had been divorced for about a year. They were having problems with their visitation schedule. During their first session, they talked about how difficult their divorce was. Both of them said they were much angrier by the end than they had been going into the divorce. They didn't know how their divorce spun so out of control. They both accused the other of having done things during the divorce that were unforgivable. Even though they had children, they didn't see how they would ever be able to talk civilly to each other again. During mediation sessions in the weeks that followed, they learned to focus on their children and worked out a schedule that better suited everyone's needs. They even learned to put some of the anger they felt aside. For them, it was not too late to do something about the legacy of a bitter divorce.