Mediation

You have tried it all. Your friends have spoken to your heart. You’ve gone to couple therapy. You’ve tried a temporary parting. You’ve gone to the Rabbi. But nothing helped, and you are breaking up. But the both of you are sane, so you’ve decided to use mediation. It’s the right way to go, but that’s not enough. Mediation is an emotionally tough process. Somehow unexpectedly, it includes more psychologically challenging parts than a court case. This is because sitting with a lawyer, planning your attack over your ex might be treacherous for your children, but it may feel pretty nice for a few moments. Anger is a self-righteous, comforting emotion. In mediation, however, you won’t be able to use your most childish feelings, on the contrary, you will have to control yourself in front of the very person which irritates you the most at the moment. It is not simple at all, and to alleviate your preparation for the unknown, I have a few recommendations:

  1. Don’t expect to “win” the mediation. In court there are no unambiguous winners or losers, and the same is true for mediation. Instead of fantasizing about leaving mediation as the dominator, you better think of what you are willing to give up (for example, maybe a registered “mother custody” is not that important to you, as long as the children actually spend with you as much time as you want), and get focused on defining the needs that you really care about (for example, a private school for your children).

  2. Think of your wills in terms of “needs”, not “rejoinders”. For example, do you really need a “joint custody” (a specific rejoinder), or maybe you actually care about taking part in the decisions regarding your children (a need)? Let us make the discussion a bit shallow for a moment – when your kid asks for pizza, you have the ability, as parents, to distinguish between his hunger (a need) and his will to eat pizza (a specific rejoinder). The same logics should be applied to your own wills as well.
     

  3. Let go of your opinions. “I believe 50-50 is the fairest”, “I think little children should stay with their mother”. Our opinions are one of the things that distance us from understanding our needs, filling us with obsessions about specific rejoinders. Try to be sceptic about your opinions. Mostly, they exist to serve a certain emotional need it’s hard for us to admit. One talk with your friends, a therapist or your mediator might help you clarify what you really need.
     

  4. Don’t try to study law using the internet (A). The mediation process includes legal advice for your rights. You can’t give up on things you don’t own (for example, you can’t give up on your ex’s inheritance from her mother, which was kept in a separate account, as it was never yours in the first place, so you “giving up” is not a legitimate part of the negotiation). In the same way, you can’t realistically demand things which aren’t consistent with the law (such as forcing the other parent to go on family vacations even after the divorce). The mediator may refer you to a lawyer which will legally advise you about your rights. They could even describe what is expected to happen if your case ends up in court. Don’t be afraid of consultation. On the contrary, ask your mediator to refer you to a lawyer which tends to mediate, so that they won’t incite you or the other side with false promises.
     

  5. Don’t try to study law using the internet (B). Arrive at the meeting with your lawyer with a list of questions, and ask the lawyer to record the meeting, so that you can focus on listening, not writing.
     

  6. Don’t try to study law using the internet (C). Even if you are smart and educated, most chances are you will have a hard time figuring out the information online regarding cases that seem similar to yours. Ask your lawyer and mediator to help you distinguish between the legal world norms and mediation agreements norms. You belong to the qualitative group of people that break up with mediation, and you should liken yourselves to other couples which belong to the same level of intelligence and culture.
     

  7. Keep calm. You don’t need to make important and quick decisions during mediation without thinking about them first. One of the advantages of this process is that it doesn’t include opportunism. You have the time to think. Knowing this lets you arrive relatively calm at the mediation meetings.  
     

  8. Don’t expect your mediator to act as an arbitrator. Whereas they have the experience and knowledge of the law, their job is to help you find the solution which is right for you. Don’t expect them to be an arbitrator. It doesn’t really matter what is their opinion about “custody of infants”, for example. What matters is that they are capable of ensuring that neither of you makes hasty decisions based on ignorance or psychologic stress, and that you don’t become radical about your opinions in vain, instead of having a conversation of needs which may yield a solution.
     

  9. Try to avoid getting into a race of authorities. In order for you to conduct the mediation process with trust and honesty, sign the other side in the beginning of the process on an agreement which declares that if any controversial matter can’t be resolved by the two of you and/or using the services of a mediator or otherwise, you agree that jurisdiction is vested in Family Court merely. The mediator could formulate a short document for you regarding this matter. Sign three copies of it and let it aside. Hopefully, you won’t need to look at this document ever again.
     

  10. Be effective. Make a list of everything valuable you hold jointly and the copies of important documents, such as your pension reports, shared assets’ appraisals, lists of costs relating to raising your children and house maintenance, details of mortgage or other debts, account pages from the bank, etc. Make at least three copies of every document – one for yourself, one for the other side, and one for the mediator.
     

  11. Be honest. Say the truth to the mediator and to the other side. Mediation requires honesty. It is clear, right? If you committed not going to a lawyer without notifying the other side – don’t do it. Don’t hide money or property. Don’t agree to get divorced in exchange for the other side giving up on fundamental things. Behave in good faith. Be humans.
     

  12. Be open to compromise. Being open to compromise doesn’t mean presenting your ideas to the other side and expecting them to accept it.
     

  13. When you get furious of the other side (A). Begin with forgetting about the past and getting ready to the future. Instead of arriving to the mediation with a list of injustices, be focused on imagining the next summer vacation. Don’t you prefer spending it at the beach with your children and without your irritating ex? You may also imagine your children spending time with your ex while going on a weekend vacation with your friends in the desert. Admit that it’s preferable to waiting under pressure to receive your statement of defense from the lawyer.
     

  14. When you get furious of the other side (B). Remember that blowing the mediation up and going to court is not much of a threat.
     

  15. When you get furious of the other side (C). You don’t have to be a part of every meeting of the mediation, nor is your ex. If there’s a sensitive matter that you fear might blow up, or of your ex’s response, ask your mediator to have separate meetings, or to go out and cool off a bit. The mediator is not a probation officer or a school principal. They are there to make you feel comfortable.
     

  16. When you get furious of the other side (D). If everything is about to blow up, share it with your mediator. They can think of ways to handle this process and get to the wanted end of it. If you don’t tell them what you feel, you don’t let them do their job.
     

  17. Remember that the negotiating process is not always linear. You don’t need to fear of regressions. Expect a big explosion right before the finish line which will seem like the dissolution of everything. It is expectable. After signing the agreement, there will be a lot less of contact points left between the two of you. So it will be naturally hard for the both of you to let go of the mediation and get to the end of it, even if the both of you want to part.
     

  18. Protect your kids. You may start taking in your parting, but they don’t yet. Watch your mouth when they are around. It’s also recommended to consult with a children psychologist. It’s a general recommendation, which is fundamental and poignant, and includes the following recommendations as well: don’t cry in front of the children, don’t talk about the other parent in another language or on the phone around them, don’t roll your eyes around them or make sarcastic comments, and discipline your friends and parents about this matter as well.
     

  19. Ask your friends to remind you of the advantages of mediation. Even though the agreement is validated by a court order, if you achieve a good one, it might end up resting in your drawer whereas none of you reads it ever again, let alone goes to court with it, because the both of you formulated it according to your lives and real needs. Be surrounded by friends which will remind you these facts.
     

  20. Use the mediation as a developmental stage. It has the ability to redefine your relationship. If you had a problem of unbalanced powers or trust issues in your marriage, the mediation could establish this exact kind of things in a healthy way, and create the best conditions for you to get along in life as a family. Mediation helps imagining your life from now on.
     

Good luck.

R

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