Prerequisites for Successful Mediation
My first responsibility, as a Senior Mediator, is to determine whether or not a couple is, in fact, ready to mediate. Unfortunately 60 % of the couples that choose mediation are not prepared. There are several reasons for this, but in this article, I will concentrate on the two most significant criteria for successful divorce mediation.
Dynamic of Communication
The first important aspect of mediation is what we call the Dynamic of Communication between the parties. If the communication between the couple is poor, it is not easy to mediate. Emotions may be very fragile or the couple may lack the skills necessary for effective communication. However, as long as both parties share the same ultimate goal; that they are both working towards reaching a mutually acceptable agreement for a parenting plan/ to separate/divorce, I can still effectively manage the mediation process.
Stage of the Process
A second equally important criterion for successful mediation is what we term the Stage of the Process. It is much more difficult to mediate if the Partners are at differing stages in the process. We can apply the 5 steps of grieving: Denial, Anger, Bargaining, Depression and Acceptance to the process of separation/divorce. It is difficult to mediate if one of the Partners is in Denial while the other is in the Acceptance stage but it is also very common to be in different stages of the process. Do not forget that an individual may have begun to contemplate divorcing 12 to 18 months before he / she expressed the desire to divorce. This often makes it difficult for the other person in the relationship to be at the same stage. Mediation, unlike litigation, is about balance. A successful mediation results in a well-balanced agreement. This is much easier to achieve when the couple finds themselves at the same stage in the divorce process. If not, in my experience, small challenges whether they are financial or related to parenting tend to evolve into great problems and can gridlock the entire process. This lack of synchronicity in the process often causes delays in arranging meetings, supplying the necessary paperwork, and in meeting ongoing responsibilities.
As the expression goes, you need “Two to Tango” in order to orchestrate a successful mediation. The initial prerequisite is to ask the question: “Do you both want to divorce?” If one Partner openly says “No”, then chances are that this couple would fall into the 60 % of couples that are not ready to divorce.
One of the first steps of the mediation process is the Pre-Mediation Interview. During this initial step I try to understand the family structure and history and I probe for pending legal issues, for incidence of violence/drug abuse etc. We begin with a phone interview and conclude in person. The definition of process is that it is the action of going forward. One of the characteristics of a process is the fact that it is dynamic, not rigid. During the Pre-Mediation Interview, I assess the dynamic of the interaction between the couple: the characteristics of the Communication between the couple and the Emotional Stage of the process the couple is at. This will assist me to determine if the couple is ready for mediation and whether or not we can achieve a successful outcome. Fill out our Pre-Mediation Interview Form to start your process.
Communication Dynamic Example
Let’s take a look at the Communication dynamic of a couple who I will call Lee and Morgan.
Level of Contempt
Lee: “I thought we were supposed to be here at 5:00 PM and it is 5:15 PM. Would it be ok if we set up a first rule of mediation to try to be here on time?”
Morgan: “NO! We were supposed to be here at 5 30 PM. You have never had a good memory and I remember everything. I am even earlier than the agreed time.”
Level of Criticism
Lee: “One of my concerns is the kids’ reactions.”
Morgan: “Of course you are concerned, you are a Control Freak and you have been for our entire marriage. Why do think we are here?”
Level of Defensiveness
Lee “Do you think we can discuss child support in mediation?”
Morgan: “With me? I love my kids. I would never deny them anything. We should be discussing you and the way you are going to manage the money.”
Balance of Power
Lee: “All our money is in the HSBC bank account.”
Morgan: “I have not read a bank statement in years. I have no clue if we have $1,000 or $ 1,000,000.”
Past Behaviour Shadows
Lee: “The parenting plan should be set up for 6 months and see how it goes. What do you think?”
Morgan: “As long as you do not show the parenting plan to your mom, otherwise she will stick her big nose into it as she has for the last 10 years and then the parenting plan will have to be changed in 1 month.”
Now let’s have a look to determine whether the couple is at the same Stage of the Process.
Are they both ready to separate/divorce?
Lee: “I am here to discuss options.”
Morgan: “Yes for sure. I am here to discuss options and to see if we still have a chance?”
Do they agree on how and when to talk to the kids?
Lee: “If we are sleeping in separate beds anyways, why talk to the kids for now?”
Morgan: “My main concern in regard to the kids is how often I would see them if I am travelling 3 months of the year?”
Do they share the same time frame?
Lee: “Well ….I would like to have everything ready to sign before the children start school in September.”
Morgan: “I do have to renew my line of credit with my bank and this will happen in October. So, I need to talk to the bank after I get my line of credit.”
What do I do as a Senior mediator in this case?
For the communication dynamic problem, first I make the couple very conscience that communication and the way each one will handle emotional reactions during the mediation process can determine the result of the process and the process can be stopped. In extreme cases, we set up tricks, such as brakes if necessary, position of the chairs, raising hands to talk.
Secondly, the couple will set up ‘rules of communication’. Each person will be asked what kind of rules she/he would like to see while in the process. It is not up to me the define the threshold of each person, but it is up to me to secure that the threshold established by both parties is respected. For example, no names, not brining up issues that are more than 2 years old, no raising the voice etc. Some of these rules are mentioned by me, but as soon as the couple understands, they bring their own set up or rules; this is important so each one will have the feeling of security and a neutral environment. Addressing the stage of the process is more difficult. My experience has led me to take a tough approach when necessary, such as “you may need time; you are not ready for mediation”. It is very common that the person that does not want the divorce, ended up accepting the divorce with the intention to show to the other person (the one that clearly wished for the divorce) that he/she is doing something for the other. This is a double message “I agree with the divorce just to please you, but I will not really collaborate”.
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