2/15/2022

Are You a Good Candidate for Mediation?

     In appropriate cases, our firm loves helping people resolve their family law conflicts through the mediation process.  Some of our attorneys are mediators themselves and conduct both private and court-ordered mediations.  They also volunteer and discount their time for various county courthouse programs.  Our attorneys who represent individuals rather than serving as mediators support clients through the process by advising them before, during and/or after their mediation sessions.  We maintain professional relationships with excellent mediators and family law attorneys throughout New Jersey and enjoy collaborating with them to assist the families we serve.

     It is personally and professionally rewarding to help people resolve their legal issues privately and respectfully on their own terms, especially in the world of family law.  For example, a successful mediation experience may not only help resolve the issues immediately at hand at the time but may also improve the parties’ communication and problem-solving skills to navigate future conflicts on their own.  The skill set they will develop in doing so will serve themselves, each other and, most importantly, their children as they coparent for the rest of their lives after their case is finalized.   (I say “the rest of their lives” because even adult children of divorce wish their parents could communicate without conflict.)

     Potential clients attending their initial consultations with our attorneys often ask us various questions about the mediation process to determine if they are interested in pursuing it with their ex or soon-to-be-ex.  While we are happy to answer any questions about the mediation process, people are often surprised when we then steer the conversation into a direction they did not anticipate:  Not only do they need to think about whether mediation is right for them, but whether they and the other party are right for mediation. 

     That’s right.  Mediation is not appropriate for every case or every couple (or ex-couple – you know what I mean.)  To illustrate this point in different way, let’s consider a divorce case.  However, keep in mind that the heart of these concerns carry over to mediations in most types of cases.

     Here are some issues to consider when determining whether you are right for mediation:

     (1)  Do you both understand the finances in your marriage?

     You cannot be on a level playing field in negotiating a resolution of financial issues if you do not both understand the details of what you are negotiating.    You must both understand each and every relevant detail of your incomes, assets, debts and expenses. 

     Do not let this requirement overwhelm you if you left the finances to your spouse during your marriage.  It is not unusual for one spouse to take on the role of handling the family finances.   That spouse may therefore appear to have a natural advantage in this regard when negotiating a resolution of finances in the event of a divorce. 

     This does not mean you cannot resolve your divorce in mediation.  However, it does mean that you should not begin the mediation process until both parties make full and complete financial disclosures to each other before beginning the process or even considering mediation. 

     As your attorney can explain to you, the first and most important step is for both parties to complete Case Information Statements (CIS).  A CIS is an extensive ten (yes TEN) page form each party in a divorce case fills out to disclose in painstaking detail information about their individual and joint income, monthly expenses, assets, debts and more.  It also requires various attachments, including but not limited to copies of tax returns and pay stubs. 

     If you file for divorce, each party will be required to complete a CIS, file it with the Court and send a copy to the other party.  If you are trying to completely resolve all issues in your case prior to filing a Complaint for Divorce, whether through formal mediation or through negotiations with the assistance of attorneys, a CIS is still a helpful first step.  It takes a lot of time and energy and you may occasionally stamp your feet and scream into your pillow that this is the worst homework assignment you have ever had, but do it anyway.  If you try to cut corners to save time or allow the other party to convince you that there is no need to formally disclose these financial details before proceeding with mediation, you may end up with a complete mess of a divorce settlement that may never be fixable.

     Sometimes the exchange of Case Information Statements reveals the need for further information or documentation to ensure that everyone involved in the mediation process is on the same page and that everyone understands everything they need to understand before negotiations can process.  Your attorney or mediator can advise you whether this might be necessary in your case. 

     (2) Is an outside professional needed?

     Sometimes an outside expert  or other professional is needed to provide their own input before either party has the information they need to negotiate a resolution.  Such examples include but are not limited to:

     (a)  Best Interest Evaluation for a major custody or parenting time dispute

     (b)  Real estate appraisal

     (c)  Pension appraisal

     (d)  Business appraisal

    (e)  Mortgage broker to determine whether one party would be approved for a refinance or a new mortgage

     If your case requires an appraisal or other outside input, this does not mean mediation is out of the question.  It may just mean that you have to wait a few weeks or months for someone else to provide the information you need.  In the meantime, if there are other issues you can mediate to make progress in your case, you can do that.  For example, if divorcing parents need to undergo a Best Interest Evaluation with regard to the custody and parenting time arrangements for their children, they can still work on mediating the financial issues in their case while they wait for the expert to complete their report.

     (3)  Does one of you have an overpowering, abusive or otherwise problematic personality?

     Yes, we understand that if you did not find your spouse’s personality to be “problematic” you would probably not be getting divorced.  We are not talking about compatibility issues.  We are talking about unhealthy personality dynamics that would undermine the mediation process.

     Just as both parties involved in a divorce mediation need to be on a level playing field regarding finances, they need to be equally empowered with regard to their personality dynamics.  Here are some examples of situations in which one party can directly or indirectly overpower the other in a mediation setting:

      (a)  One party is intimidated by the other;

     (b)  One party feels so guilty about ending the marriage that they feel compelled to give the other party whatever they want;

     (c)  One party has become so worn down by the other party’s antics that they want to give them whatever they want just to end it all;

     (d)  One party uses their superior financial or legal sophistication to try to take advantage of their spouse’s dependence on them;

     (e)  One party is comfortable speaking about complex financial, business or legal issues while the other party feels very intimidated and uncomfortable and shuts down;

      (f)  The parties’ relationship has involved emotional, physical, financial or psychological abuse of one party against the other;

      (g)  One party aggravates or annoys the other party until they give in to their demands;

     (h)  One party is actively suffering from mental illness or an addiction and is not in a position to engage in reasonable negotiations or enter into a legally binding agreement.

     Be honest with yourself.  Do any of these potential scenarios hit home for you?  If so, do not rush into mediation without discussing your concerns with your attorney (if you have one) and the mediator.  It is possible that mediation may still be a safe avenue if safeguards are put in place.  Such safeguards may include completing all necessary financial disclosures first or bringing an attorney to the mediation session to continuously support and advise you and even speak on your behalf when needed.  If the personal with the concerning personality has an attorney with them, it can go a long way toward keeping that person in check and productively moving forward.  Sometimes, these mediation sessions need to be held with the parties separated in two different rooms at all times.

      (4)  Can you both put your emotions aside enough to focus on a fair and equitable resolution of the issues at hand?

     A divorce is a like a death.  I am not saying that losing your spouse to divorce is just as traumatic as losing your spouse to a death.  I am saying that the death of a marriage, the death of your life as you knew it, the death of your nuclear family and the death of your hopes and dreams can be the most traumatic experience you have ever had to live through.  Over the years, we have watched so many of our divorce clients (and sometimes their spouses) experience the same stages of grief during their divorce process as we often associate with death: (1) Denial; (2) Fear; (3) Anger; (4) Bargaining; (5) Guilt; (6) Depression; and (7) Acceptance.  More often than not, the divorcing parties are in different stages of grief at different times. 

     No one is begrudging a person going through a divorce for going through those stages of grief – certainly not family law attorneys and mediators who are devoting their careers to helping them.  We know we are helping people through one of the most (if not the most) traumatic, anxious, confusing and stressful experience of their entire lives.  We do not expect you to put on a happy face and pretend you are fine with everything that is happening around you. 

     However, if you are going to come to the mediation table so overcome by your love for a spouse who no longer wants to be married to you, so consumed by feelings of betrayal and/or absolutely beside yourself about the idea of your children not living with you 100% of the time, you will not be able to compartmentalize your feelings enough to negotiate a fair and equitable resolution of important issues that will affect your family’s future.

     If any of this sounds like you, stop right now and develop a game plan and a support system.  Find a therapist.  Lean on your friends and family who are helpful to you physically, emotionally and/or psychologically.  (Please, not the sister who wants to belabor every negative thing about your spouse and report every sighting of him with his new girlfriend.  That’s not going to help you right now.)

     Read a self-help book that speaks to you.  (We purchase them for our clients.  You can find a list of titles on our Recommended Reading page.) 

     Speak with your doctor about whether medication may be appropriate to help you through this period.

     If the sight of your spouse’s face or the sound of their voice makes you want to either collapse in a puddle of tears or spit nails, ask the mediator to keep you in separate rooms throughout the mediation.  They understand.  They have done this before.  No one is more effective at having one ongoing discussion while bouncing between two rooms for hours at a time without missing a beat and ending it with everyone on the exact same page than a divorce mediator. 

     Mediation is a wonderful tool, but not every person or couple are good candidates for mediation.  Sometimes the issues preventing fair and effective mediation - whether by implementing some of the suggestions made here or even just by the passage of time.  Other people may never be good candidates for mediation, but their attorneys can help them resolve their divorce out of court in one of many other tools in our arsenals. 

     Maybe you just need to take some time to obtain more information before you are ready to negotiate settlement terms.  Maybe you need to work on building your emotional strength first.  Maybe the style or process of the mediation needs to be adjusted.  Or maybe your case would be better served with your attorneys directly leading and conducting the divorce negotiations between each other outside the presence of either party.  Finally, maybe you need a Court to intervene on some or all issues within your case because you and your ex are simply never going to resolve it in any other way. 

     If you would like to speak with either our attorneys or our mediators about whether you and your --- would be good candidates for mediation, you can call us at 973-993-9960 or submit an inquiry through our Contact Us page.