Is mediation right for you? Depending on your circumstances and goals, it can be an effective setting for mitigating conflict, reducing costs and offering you and your spouse control over the outcome of your divorce. It’s also a more private process than court that can save you and your family the stress of litigation.
However, some clients hesitate to engage in mediation because they’re concerned about a power imbalance, increased anxiety caused by face-to-face meetings with their spouse or potentially losing more time and money if the process doesn’t work. As an experienced, knowledgeable family law attorney, it’s my job to address these common concerns and obstacles and set my clients up for success. Here’s how.
“I’m worried my spouse will dominate the process.”
Some people are reluctant to enter the mediation process because they’re concerned about an imbalance of knowledge or power. If one spouse has been dominant in the relationship or has greater financial sophistication, it can cause the other to fear they might be steamrolled in negotiations and end up with an unfair settlement.
This concern is exacerbated by the frequent misconception that couples must meet with a mediator without attorneys present. Actually, most mediation today occurs with attorneys for both sides present to correct any imbalances. Your attorney should also recommend a mediator well-suited to your case and the personalities of those involved.
“I don’t want to be in the same room as my ex.”
Divorce is emotionally charged, and many people are concerned about being in a close setting with their soon-to-be ex during mediation. They’re apprehensive that either they or their spouse will become too emotional and hinder the process. Savvy and seasoned mediators and attorneys will minimize this and keep discussions on track.
Shuttle mediation and virtual mediation are some of the tools mediators use to create a buffer and lessen the intensity of the negotiation sessions. In shuttle mediation, whether in person or virtual, the parties are in separate rooms, and the mediator goes between the two. In a virtual setting, some parties may begin the process without cameras if they feel overwhelmed and later turn them on if they have acclimated to the process and feel more comfortable. There are plenty of creative solutions that your attorney and mediator can design to help you feel more at ease and committed to the mediation process.
“I’m concerned mediation is just a delay tactic.”
One of the biggest misgivings I often hear about mediation is that clients are concerned it might be used as a delay tactic by their spouse to gain certain financial advantages. For example, they might fear that their spouse would prolong mediation so they continue to have access to joint funds and the marital wealth continues to accumulate for a bigger payday. Delays can also affect other financial considerations, such as spousal maintenance. In Illinois, the length of time during which alimony is paid is a direct function of the length of the marriage, and the clock stops running on the length of marriage when you file for divorce.
Creative, problem-solving attorneys can address these concerns directly by either putting financial incentives in place to reach an agreement within a certain timeframe or by private agreement to stop the clock on the length of the marriage without the necessity of a public filing.
“If it doesn’t work, will I have wasted my time and money?”
Lastly, people resist mediation because they fear it will be a waste of time and money if a resolution isn’t reached. Depending on your unique situation, your case may very well end up in court. It may also go back and forth between court and mediation before your case is resolved. Yet, I always encourage clients to remember that the time spent mediating is not wasted. The initial phase of both mediation and litigation is information gathering. The information shared in mediation — except for confidential negotiation communication — can be used in litigation, which will give you a head start on the discovery process. Once the information is in hand, it does not take long to discern if the mediation holds the promise of an amicable resolution. If you and your attorney feel mediation is not going anywhere, you can terminate the process at any time. Mediation is a place where both parties have to come by agreement. No one can force anyone to stay there.
A key to a successful mediation is working with a conflict-wise attorney who will keep your goals and priorities top of mind — not their own — and address any concerns you have along the way. Lawyers may personally feel you are entitled to so much more and want to fight for it, but what the law entitles you to and what you are willing to live with when the dust settles may be entirely different things. Ultimately, mediation aims, whenever possible, to preserve positive aspects of your relationship and empowers you and your spouse to create a mutually agreed upon, carefully tailored resolution in a much more private, dignified setting.