This article focuses on what mediation offers that allows emotional growth and mutual understanding to take place in the context of a divorce settlement. Rather than become opposing parties in a lawsuit, with the help of a mediator a couple can work together to create their own solutions to the issues presented by the divorce. The end result is a Marital Settlement Agreement that offers a realistic financing plan, a parenting plan, and the foundation for a more positive family fit.

In my capacity as a mediator, I am often asked, “How long will this process take?” My answer is that it depends largely on emotional readiness. Unresolved disputes and feelings from the marriage—mistrust, rigidity, fear, anger, reactivity, depression, and confusion— create the dynamics of the mediation. In mediation these issues are diffused and handled in a way that is empowering and helpful to the individuals and to their future relationship. The number of actual sessions required varies, depending on the “readiness” of the couple, but, typically, a divorce mediation takes from three to ten two-hour sessions.

Who Chooses Mediation?

A variety of people choose mediation over other possible methods of arriving at a divorce, not because they know about mediation, but because they have received a referral from someone they trust. They trust the referring person’s selection of both the process and the particular professional. This initial trust is essential to a person in the emotionally challenging period of deciding to divorce and figuring out how to do it. Therapists also are a good resource in helping couples consider mediation. An attorney is not required; couples can hire a legal document assistant to help them complete and file the forms.

Mediation is particularly useful for people who will need to have a continuing relationship, whether through their children, their church, or their social or business group. Mediation generally is not helpful when there is serious substance abuse, spousal abuse or mental illness. When clients are heading towards a divorce, a therapist can encourage clients, individually or as a couple, to talk to mediators and to consider mediation’s special offer of a safe environment in which to go through divorce and come out whole on the other side.

The First Calls

John and Sue, who were referred to me by a former client, contacted me individually by phone. In the first calls, I explain the basics. “In mediation, I don’t look for who is right and who is wrong. I am neutral. I don’t represent either of you. I am looking with you for solutions that will set both of you up financially and emotionally for life after divorce.”

In those first calls, each asked the same common question, “How can we resolve issues when we can’t talk?” This question gives me the opportunity to reassure the couple that mediation is worth trying. I tell them that setting aside a time and place with an experienced neutral party can profoundly affect the nature of the interactions. For most people this means being able to have productive conversations about subjects that previously had sparked fights. I explain that a neutral mediator can reduce reactivity so that they can listen to each other, think more clearly, and express their true needs.

The First Meeting

The first meeting with the couple is an opportunity for me to get a flavor of their emotional states and to observe some of the dynamics involved. Almost without exception one person has made the decision to divorce and the other still wants to save the marriage. For this reason mediation often plays a role in helping the slower person come to terms with the change in his or her life. In this case, it was Sue who felt that John had blind-sided her and simply given up on the marriage. John felt he had been clear about the problems for years and Sue simply didn’t take the time to take his concerns seriously.

John and Sue had been married for 11 years and had one daughter, Kim, who was now nine years old. John had not yet moved out but he had filed the Petition for Dissolution. He also was planning to leave the state to live with a new partner. Sue, who had supported John and the family for the last several years felt deeply betrayed. From her perspective, John not only was leaving her but wanted to take their daughter with him. Sue did not feel she owed John any help in maintaining his relationship with Kim. To Sue, John’s priority was himself and not his daughter. John, on his part, was tired of feeling guilty. He felt Sue had been part of the problem and was angry at being painted as the “bad guy.” In John’s mind, he had tried hard to communicate to Sue that he was not happy in the marriage, but Sue had ignored him and his needs.

Unresolved emotional issues and characteristic dynamics are bound to crop up whether a couple is talking about assets, support, or custody. Sue said she wanted John to do all the traveling back and forth and to pay all travelrelated expenses because “He caused all this.” And, despite the strength of her underlying feelings, Sue started off by saying, “These are basically business-like negotiations and I don’t want to rehash the marriage or talk about feelings.” Having big feelings and denying them at the same time is quite common in divorce mediation. However, in my experience, if all feelings are avoided, the mediation will hit an impasse and fail. Sue, once secure in the process, was able to realize that feelings can be useful, even essential to creating a settlement that is healing; and she became more confident about expressing her feelings.

The Structure of Mediation and Its Impact on a Divorcing Couple

Outline of Issues –The Divorce Will be Organized and Finite

Using a large dry erase board, I map out the broad issues that need to be addressed: division of the assets, allocation the debts, making decisions about spousal support, and making a parenting plan that includes child custody and child support. With this basic list on the board, John and Sue had tasks to focus on and stopped stewing in their own fear and pain. At this point, clients usually feel a great sense of relief not only because they finally are moving forward but because the process will be finite and specific.

Once given the basic list, John and Sue quickly identified two areas that felt easy for them: the division of their liquid assets and Sue’s purchase of John’s interest in the family home. They already had decided that the liquid assets would be divided equally and John had said he was comfortable with Sue’s buying him out of the house. I quickly put checkmarks next to those two topics. Looking at the list, John and Sue also were able to identify the particularly tough issues: reimbursements for monies John spent on recent travel and purchases for his new home. But they decided to handle the easy issues first while getting used to the process and building confidence through small successes.

Neutrality

Throughout the process I work to align the clients against the problem, not against each other. Mediation is not a legal structure; it is not oppositional. Most couples, however, are stuck in the belief that the solution to any relationship problem is finding out who is right and who is wrong. I always tell clients that they are 100% right. “Now, let’s work on the problem.” Most clients are happy to hear that there is no right or wrong and that no one will be coerced into agreeing. In this case, my non-judgmental approach gave John permission to let go of guilt about leaving the marriage and, consequently, John was able to be more flexible in his approach and more responsive to Sue’s feelings. He was able to say, “I understand how you could feel overwhelmed by these changes. And, believe me, I know Kim needs you as the primary parent in her life.”

Experiencing my neutrality allowed Sue to see that I wasn’t there to decide who the better or more important parent was. “In California,” I said, “the child has a right to frequent and continuing contact with BOTH parents. Unless it is unsafe, courts are generally looking for parents to facilitate a good relationship between the child and the other parent.” Hearing this helped Sue begin to separate her own feelings of anger, betrayal and abandonment from her daughter’s need to have John in her life. “It’s hard,” she whispered, “but I feel good that I am doing something important for my daughter.”

In the judgment-free environment of mediation, parents often come up with their own ideas about how they can do better. John eventually could say, “You know, I don’t think I should come for a visit during the school week. I think it would be too disruptive.” And Sue could acknowledge that she wanted and valued his input, “Well, I think it would be good for you to come when there is a big project. You are the better writer. When you were living here, you didn’t participate in schoolwork. I think with some effort, we can improve on that.”

Confidentiality

Even though mediation is an adjunct to divorce, unlike court proceedings but like therapy, it is confidential. With few exceptions, none of the discussions can be used in court if there is later litigation. Knowing that she wouldn’t be quoted later was exciting and freeing for Sue. “So I can change my mind?” Her question made John at first nervous. “When do we know that we actually have an agreement we can count on? Can she just keep changing her mind forever?” Sue was able to explain: “I feel that in the marriage I always quickly deferred to John and I want the opportunity to check myself to make sure that I am not agreeing just to agree with him again.” John was pleased that Sue wanted to come to her own decisions and would not feel coerced into agreements afterwards. His fear of endless mediation dissolved.

Customized Sessions

Like marriages, no two mediations are alike. The circumstances of each situation and the features of each couple dictate how the mediation goes. A forty-year marriage between individuals who are now retired has different considerations and rhythms than a seven-year one between 30-year-olds with toddlers

In John and Sue’s case, identifying the tougher issues and then coming with manageable ways to deal with them was important. Because Sue wanted to meet John’s new partner before sending Kim off for a visit, arrangements needed to be made for the meeting. Phone call protocols were set up. Transportation and escorting were negotiated. At various points Sue’s feelings that she wasn’t the one who caused all this effort would resurface. John acknowledged that he was the one moving, but it was important to him that Sue acknowledge that he was not solely responsible for the failure of the marriage. Doing so was hard for Sue, but over time she grew happier and more at ease, and could say, “Even though this has been brutal, I may well thank John for ending the marriage.” Mutual acknowledgements helped both of them become more flexible. Sue even ended up agreeing to pay for one trip a year for her daughter to visit Dad.

For John and Sue, the idea of having mediation available each year to work out schedules and to make decisions about child support was reassuring. Consequently, they made a plan to meet annually.

Summaries

At the end of each session, I prepare a summary of the agreements, legal issues, financial questions, feelings of each, and the tasks that each person is working on. At the end of a typical two-hour session, most people cannot remember what we talked about because they are drained and exhausted. Knowing that a summary is coming later frees the couple to just be in the meeting.

Afterwards, the summary has many purposes, including helping people distance from their reactivity and separate real issues from kneejerk responses. “You know, when I saw my comment about money, I realized that I really want to help John’s relationship with Kim and that Kim will thank me for that when she grows up.”

The summary also helps maintain the structure because each person can see exactly where they are in the process and what they need to do to move forward. The possible tasks ahead can include filing the divorce petition, preparing asset and debt information, getting house and business valuations, looking into financing to buy out the other’s interest in the house, documenting a child’s expenses, looking into life and health insurance, and closing credit cards.

The summary also reiterates all monetary calculations so that each person knows how agreements about money were reached. In John and Sue’s case, calculations were needed before coming to agreements about the house. We agreed upon a value, deducted the outstanding mortgage and reimbursed Sue for her separate property down payment. We then divided the balance remaining into two equal parts to determine the amount Sue would pay John for his share.

The Skills Learned in Mediation Positively Impact Emotions

Listening, Objectifying, and Understanding Intent

Throughout the process, the mediator models non-judgment, curiosity, and problemsolving. She is forward-looking, asks key questions, and encourages each person to be thoughtful and thorough in their responses.

In Sue and John’s case, I reframed heated statements to tease out the underlying messages and then stated them in a neutral way. For example, John insisted that Sue not ask for child support: “You make so much money. You are just punishing me for leaving!” I reframed this to: “John feels that your income is high relative to his and that this should be considered when we look at child support.” When John then learned that Sue’s intent was to use the money to build up a college fund for Kim, he said he wanted to contribute to the fund—but not as child support.

Empowerment and Future Orientation

Typically, each party in a marital conflict feels controlled and victimized by the other. In fact, neither person is getting what they want or need for a number of reasons: lack of selfawareness about their needs, no expectations that needs will be met, and difficulty putting needs into words.

John said he didn’t want spousal support even though he earned much less than Sue. He felt that Sue didn’t really respect his efforts to become a writer and wouldn’t want to help. Sue was shocked. “I supported you for two years while you pursued your dream!” John felt that even though she had supported him financially Sue did not take him seriously. As he put it, “You didn’t seem interested in what I was actually doing. You just wanted to make sure I helped out at home because you were the real working one. That hurt.” Sue was quiet, but finally said, “It didn’t seem like you wanted to involve me. I felt excluded.”

When it turned out that neither wanted to be financially dependent on the other, both were relieved and both felt that a significant block to better relations in the future had been removed. Moreover, both now realized that good communication was essential if they were to parent effectively in the future. They vowed to learn to communicate better with words and scheduled regular phone calls expressly to discuss parenting.

Information Gathering and Other Professionals

The mediator knows that a lack of information or misinformation is a great source of grief to divorcing couples and that some couples enter mediation not knowing how to ask for information nor how to evaluate it once received. Although the mediator is an important source of information herself, she also refers clients to other experts as needed. These include therapists, attorneys, accountants, actuaries, realtors, and financial planners. Therapy and therapy groups are great adjuncts to mediation as long as they are empowering and not supportive of victimization feelings. Consulting attorneys, in my experience, do not break up the mediation and send people to court, as sometimes is thought. Rather, they can motivate people to stay in mediation because they can contrast the outcome of a mediated divorce with that of a litigated one.

John needed a referral to a financial advisor to help him manage the assets he was getting in the settlement and he needed a capital gains calculation on stock investments. Also, at one point, John and Sue wanted to consult with a child specialist about when it is appropriate for a child to travel alone on an airplane. Experts can be useful, so long as both people agree on the choice, and on how to use the information received.

Light at the End of the Tunnel

When we have a complete set of agreements, I draft a Marital Settlement Agreement which we go over very carefully, “tweaking” as needed. I also encourage clients to review the Settlement again later with a consulting attorney.

I often check in with clients six months later to hear how they have moved on. Most tell me that mediation helped them shift old, unhelpful dynamics, and that old wounds do not infect the present. Some clients, like John and Sue, who face many years of shared parenting, will call for “side-line” coaching if they feel off-track or need help with fine-tuning arrangements.

There is often a bittersweet end to divorce mediation. Couples may feel very good about mediation because of what they have accomplished, but they also know that mediation marks the end of an important relationship and this may trigger less sanguine feelings. My hope for all couples in mediation is that they will emerge stronger as individuals for having worked through the divorce as a couple.

Maria Joseph is an attorney mediator specializing in family, employment and business mediations in Berkeley. She is the treasurer and a board member of Mediation Services and a member of the Association of Conflict Resolution and the Association of Dispute Resolution of Northern California. She is an associate member of EB-CAMFT and of CAMFT. Maria welcomes readers’ questions, comments, and suggestions, and can be reached at (510) 869-5301 or at maria.l.joseph@comcast.net

Note: This article reflects the opinions of the author and not necessarily those of
East Bay CAMFT.