CAN I USE MEDIATION FOR MY DIVORCE EVEN THOUGH MY SPOUSE AND I CAN’T TALK TO EACH OTHER?
Jerry and Sue have been married 21 years. They have 3 children all in high school. Jerry has a high level position at the bank and Sue is a high school teacher. Their relationship has deteriorated to the point where either they go long periods without speaking to each other – like two ships passing in the night – or when they talk it invariably erupts into a shouting match. They both have had enough and have decided to separate.
They’ve heard of a process called mediation and that it’s a positive way to divorce and much less expensive than Court proceedings. They’ve also heard that mediation is a process that can minimize the fallout effect of separation on the children and help the parties communicate after the divorce.
They’ve also heard that mediation only works where the parties have good communication to begin with.
Well, Dear Readers, I’m here to tell you that all of the above are correct except the last item. The premise that only spouses who have good communication can mediate their divorce is unrealistic. The primary reason why a marriage deteriorates, in my respectful view, is because couples don’t or can’t communicate with each other. For example, where one party wants to address issues as they come up and the other party sweeps issues under the rug; this will lead to an inevitable deterioration of the relationship as the pile under the rug becomes a mountain.
If mediation is only reserved for parties who can communicate with each other, then mediators would be out of business!
When working as a mediator, I work as a facilitator to get the communication going and continuing. I help to lower the decibel level when conflict inevitably arises, and I address “the elephant in the room.” I use empathy, active listening and reframing skills to help keep the communication going.
I also use my legal expertise as follows: I provide a wealth of legal information to the parties, information that each would be receiving from their separate lawyers. While I stop short of giving legal advice (as required by the Law Society Rules), I can and do provide a great deal of information to the parties. This results in a considerable cost savings to them. This, coupled with keeping the communications on track, provides the parties with the tools to negotiate the legal issues involved when parties separate.
As a mediator, I take into account that family law is 90% emotional and 10% law (see my blog on my web site). The mediator must be sensitive to the emotions in the room.
For an idea of how my mediation process works, I cannot say it better than two of my clients have said (see the first two testimonials on my web site’s testimonials page: the first by M. S., June 2017 and the second by his former partner A. D., June 2017). I’ve also included these below for your ease of reference:
My common-law partner and I split after a 17-year relationship. This was a difficult transition as we met in our early twenties and became adults together. In our journey, we bought a beautiful loft that we shared for over 10 years, became part of each other’s extended families, had mutual friends, and had two high maintenance dogs we love very much (W & L). We didn’t know what the future would hold, but being both respectful people we wanted the separation to go as smoothly as possible and not cause any further harm. We figured that mediation was the best choice for us as we did not want an adversarial process. After some research, we decided to engage Anne Freed to help facilitate our separation. Anne helped us identify our mutual goals and kept us focused on what needed to be done. Her friendly, fun and matter-of-fact personality helped us deal with these complex issues. Her vast knowledge of family law enabled us to feel better educated. As the high-income earner, this knowledge helped me truly understand what the law means for me. She was careful to remain neutral and to not give advice, but would present us with facts we should consider in our decision making. We had plenty of homework to complete on our own, which then kept some of the mediation costs down. At the end of the day, we had a draft separation agreement we could each take for independent legal advice to arrive at a final agreement, and have now started our new lives. That’s not to say this journey was easy; it was still a very difficult process that took a lot of time and effort. That said, we kept our goals in mind and got to the finish line as friends. Overall, I felt like we worked through the process as a team of three: Me, My Ex, and Anne.
M.S. June 2017
Anne was integral in ensuring my ex-partner and I were able to maintain clear and respectful communication with one another throughout the entire mediation process. Anne’s legal background was also key in keeping us well informed and aware of our options (and possible repercussions) regarding financial matters, which helped us in arriving at a fair agreement in the end. Lastly, she was conducive in my ex-partner and me solidifying an ongoing and friendly relationship to this day. It truly was a pleasure working with Anne, who maintained a professional, caring and considerate disposition throughout the mediation process.
A.D, June 2017
Mediation is not right for everyone, and there are several mediation models. For example, another model is where Sue and her lawyer and Jerry and his lawyer all attend at the mediation.
Divorce mediation is a process that requires courage by both parties to be able to sit face to face in a room with each other, with the help of a third party the mediator, and negotiate the hard issues. As well, for mediation to work, the parties should have the motivation to resolve matters. Jerry and Sue have both heard the horror stories from friends who’ve been in the Divorce Court process, and also of the huge legal fees they spent. This provides a strong motivation for them to try the mediation process. With the help of a strong and also empathic mediator, positive resolutions can be accomplished.
Until next time!
Anne Freed holds a BA (Honours Sociology), JD (Juris Doctor, Law Degree), Master of Laws Degree (LL.M.) in Alternative Dispute Resolution, Advanced Training in Mediation, Arbitration and Collaborative Practice, Certification in Collaborative Practice
© Anne E. Freed, October 2018