Divorce Mediation 

Tips for Successful Mediation

You have tried it all. Your friends have talked to you for hours. You’ve gone to couples therapy. You’ve tried a temporary break up. You’ve gone to the Rabbi. But nothing helped, and the two of 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. Counter-intuitively, 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 indulge 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 facilitate your preparation for the unknown, I have a few recommendations: 

  • 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 "winning" the mediation process, you better think of what you are willing to give up (for example, maybe the title of the custodian 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).

  • Think of your wills in terms of “needs”, not “solutions”. For example, do you really need a “joint custody” (a solution), or maybe you actually care about taking part in the decisions regarding your children (a need)? Let me make this 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 solution). The same logics should be applied to your own needs as well.

  • 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, making us obsessive about specific solutions. Try to be skeptic towards your own opinions. Mostly, they exist to serve a certain emotional need. Talking with your friends, with a therapist or with your mediator might help you clarify what you really need. 

  • Don’t study law over there web. The mediation process includes legal advice regarding your rights and obligations. The mediator may refer you to a lawyer which will legally advise you about your rights. The lawyer should be able to tell you 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 is mediation-friendly, so that they won’t incite you or the other side with false promises. 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. 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. 

  • Keep calm. You don’t need to rush to make important decision. One of the advantages of this process is that you have time to think. Knowing this lets you arrive relatively calm at the mediation meetings.  

  • 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, 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 can talk about your needs in a way which may yield a solution. 

  • 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 your soon to be ex-spouse, and one for the mediator.

  • Be honest. Tell the truth to the mediator and to the other partner. Mediation requires honesty. 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 open to compromise. Being open to compromise doesn’t mean presenting your ideas to the other side and expecting them to accept it. 

  • When you get furious of the other side. Try 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. Remember that blowing the mediation up and going to court is not much of a threat. 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 if you worry about your ex’s response to a certain issue, ask your mediator to hold 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. If nevertheless everything is about to blow up, share this with your mediator. They can think of ways to handle this process. If you don’t tell them what you feel, you don’t let them do their job.

  • Remember that the negotiating process does not always progress linearly. You don’t need to fear temporary 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. 

  • Protect your kids. Watch your mouth when they are around. It’s also recommended to consult with a children psychologist. 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. 

  • 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 who will remind you these facts. 

  • Use the mediation as a developmental step. It has the ability to redefine your relationship. If you had a power imbalance in your marriage or if your relationship suffered from trust issues, mediation could help you start the next phase  in a healthy way, and create the best conditions for you to get along in life as a family. Mediation helps you imagine your life from now on. 

     

        Good luck. 

R

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