Divorce Mediation & Collaborative Divorce Articles

We hope you find our articles relevant and informative. If you have questions about divorce or any other family law matter, please contact Susan Lillis for a consultation or call (978) 356-2934 ext. 12.

What you don’t do in divorce mediation or a collaborative divorce

The basic premise of choosing divorce mediation or collaborative divorce is that both parties agree to negotiate in good faith to reach a settlement. Breaking that tenet can have a disastrous impact on whether or not you can reach an agreement. Yet there are many actions that individuals who enter either divorce mediation or collaborative divorce take that do just that.

Here are just a few things you should not do when entering into divorce mediation or a collaborative divorce mediation:

Don’t try to hide assets – Part of entering a good faith negotiation is that you will reveal all of your assets. Those who don’t disclose certain assets, hoping it will not be discovered, risk more than getting caught. If found out (and it probably will), it destroys your credibility with your spouse and in a collaborative case, with the rest of the team. This and makes it extremely difficult to negotiate. When this happens in divorce mediation or collaborative divorce, the case usually ends up in litigation. Not to mention that when you disclose your assets you do so under the pains and penalties of perjury.

Don’t put the children in the middle – The stress of their parents splitting up is enough for children to handle. Complaining about your ex or badmouthing them only adds to their stress and, one way or another, makes them feel defensive. Keep your relationship with your children about your children and the time you spend together.

Don’t ignore the other parent’s point of view – When creating a parenting schedule and other terms for what will happen with your children, you do want to keep the other parent’s point of view in mind. For example, celebrating a particular holiday may not be as important in your family’s as it is in your spouse’s. You may want to use that knowledge within the negotiation. So, instead of demanding the kids for Easter every other year—a holiday that may not be as important to you as your spouse–you let your spouse have that and you take another holiday, e.g. July 4.

Don’t hold your children’s secrets – A common result in a split between parents is that children will tell one parent something and not the other. This tactic often creates friction in what can already be tempestuous situation. For example, if your child is missing a lot of days at school, that’s something you should share with the other parent, even if your child would prefer you didn’t. Doing so helps avoid a second issue beyond your child missing school—stress between the two parents.

Don’t let your child change the schedule – Much thought goes into creating a parenting schedule as part of a divorce settlement. If a child does not want to visit, it’s incumbent on the other parent to back the other parent up and make sure the child goes. Cases where the child does not want to visit and the custodial parent does not support the other parent can get ugly very quickly.

Abraham Lincoln is often credited with the expression “It is better to remain silent and thought the fool than to open your mouth and remove all doubt.” In divorce mediation and collaborative divorce negotiation, many spouses make rash decisions without really thinking of the consequences, both short- and long-term. The risk always outweighs the reward in a divorce negotiation. That’s why what you don’t do—in the negotiation and in dealings with your ex—is just as critical as what you do.


Making the right choice for your divorce

Divorce mediation or collaborative divorce? It’s not only about the money. Making your choice strictly based on money can have some serious repercussions and most likely cost more, especially if you end up in litigation.

A great example of this occurred with one of my mediation couples several years ago. Both worked out of the home and had a young child. Both knew that working together to develop a parenting plan was paramount.  In order to save money, they elected to proceed with mediation instead of collaborative divorce.

Each hired attorneys, which is fine and not unusual at all in divorce mediation. We encourage spouses to retain counsel to run things by during the course of mediation. In this particular case, both spouses would come back to the next negotiation after consulting with their attorneys and change directions on certain issues. “But my attorney said” became a common statement during the mediation.

Again, there is nothing wrong with a party in divorce mediation consulting with an attorney. Directly quoting that attorney as part of mediation creates a different issue.  Particularly if the attorney’s specialty is litigation rather than divorce mediation. Often a litigation attorney is thinking of what position they would take in court, not what the ultimate outcome would be. When clients bring those positions into a mediation it changes the negotiations from being interest based (“This is what I think, and this is why….”) to positional (“This is what I want.  End of Story.”)

In my example, as the parties quoted their attorneys their positions hardened. No one was looking for a solution that everyone could live with. Instead, they began arguing about whose attorney was the most knowledgeable or most experienced.

The other thing that happened is that the parties would agree to something in a mediation session and then come back to the next session having changed their minds. This was infuriating to the other party who had relied upon the compromise made in the first session to make a compromise of their own.

Collaborative divorce was designed with those types of scenarios in mind. The collaborative divorce team receives specialized training to help facilitate negotiations. The attorneys encourage the parties to express their desires and explain why they seek a particular outcome.  Rather than putting forth only one take it or leave it position, the team works together to generate multiple options to the most difficult problems. Financial neutrals make sure that everyone understands the financial implications of any decision.

Another benefit of the collaborative divorce approach is having a divorce coach. The divorce coach, interviews both spouses prior to the negotiation. This helps the coach gain insight into the behaviors and tendencies of each person. The coach learns what triggers one spouse towards the other and vice versa. This can help keep a negotiating from stalling should tempers get heated.

In my experience, It is not coincidence that some of the best outcomes in a collaborative divorce are when the team includes a divorce coach.

The biggest benefit of the collaborative divorce negotiation is the group effort to come to a resolution that both spouses can live with. The collective efforts of the team put everybody involved on the same page. It’s very infrequent that a spouse will leave a collaborative divorce session agreeing to one thing and then changing their mind at the next session.

For the couple mentioned above, the breakdown in communication, coupled with the attorney involvement in the mediation, led the couple to an impasse. The case was litigated in probate court, most likely with a more costly and less desirable outcome.

Divorce mediation can be a more affordable than collaborative divorce, but it really depends on the people and the circumstances. Many couples can use divorce mediation and come to a reasonable agreement for all. Some can’t. As an attorney who practices both, I help people decide which approach is best for their specific situation.


How to win in a divorce

Nobody wins in a divorce. You have heard that one before. But that refers more to the overall process and how you feel after a divorce. It’s sad and sometimes the best you can really hope for is to feel less lousy. Yet within a divorce mediation and collaborative divorce negotiation, spouses do have the opportunity for small wins in the form of compromise.

Now, the word compromise gets a bit of a bad rap these days. You say compromise and some people tend to think you caved and gave up something. In reality, compromise is a synonym for trade, and it is a tool for spouses to get more of what they want in a negotiation as long as they are willing to offer the something that the other person wants.

Of the three types of divorce—litigation, divorce mediation and collaborative divorce—litigation offers the least room for compromise or trade. That is to say, it really doesn’t offer any room that’s the choice of the spouse. Most often, the choice is made by your attorney or the judge.

For example, if you and your spouse can’t decide on who gets the house, a judge could simply say, “Since the two of you can’t decide, the house will be put up for sale.”

In that same example, your attorney might be telling you to concede the house or neither you nor your spouse will be living in it. You will make the final decision, but it will be driven by the judge and your attorney.

In divorce mediation and collaborative divorce, compromise or trade falls into the hands of the couple. Most couples enter a negotiation knowing he/she will have to be willing to concede on some things in order to receive considerations he/she might value more in other areas.

For example, let’s say one spouse would like more quality time with his/her children. That could result in that parent agreeing to drop off and pick up his/her child at soccer practice rather than just splitting the driving equally.

Or perhaps one parent doesn’t value a holiday, let’s say Easter, as much as the other. So, a compromise or trade could be one parent gets the children for Easter in exchange for July 4.

In a collaborative divorce negotiation, compromise is also a key component. Yet with a team of experts in place, couples have a better structure and more resources available to help brainstorm and drive trades/compromise.

With both types of divorce, there tends to be a feeling out process. That’s why couples typically start on smaller issues to gauge the willingness of his/her spouse to compromise.

For example, I had one case where a couple had two vehicles: a sedan and a pickup truck. Both wanted the truck as both parties would soon be moving. In litigation, a judge might have ordered the truck sold or determined who would get the truck. In a collaborative divorce, the couple came up with an arrangement where the spouse who got the truck agreed to let the spouse who didn’t borrow it a certain number of times per month.

Each time one spouse compromises on a certain issue, it buys him/her negotiating currency for something that might be important to him/her.

For example, back to our truck scenario. If there was an item in the house that both spouses valued, it might be the spouse who got the truck who concedes that particular item since he/she got their desired vehicle, the truck.

Starting small, couples can then work on more significant compromises. For example, both spouses want to remain in the family home. With the guidance of the financial experts, one spouse may concede the family home for reduced alimony payments or a larger portion of the couple’s 401 (k).

It may be difficult to say anybody wins in a divorce negotiation, but successful compromising and trading can create a number of win-win scenarios that can leave individuals spouses feeling like he/she has been in control of the choices.

For couples with children, they do gain something perhaps even more valuable from this process: knowledge. By successfully negotiating a divorce through compromise, they now have the tool set to do the same for issues that arise post-divorce. This can reduce or eliminate trips back to court and reduce the costs associated in doing that. And that’s an area where both parties can almost always agree.


Lawyers are counselors

That doesn’t mean we are therapists, but sometimes we need to think like one. That’s largely because it’s difficult to conduct any divorce settlement through the three types of divorces—litigation, divorce mediation, and collaborative divorce—without the emotional component playing a factor, large and small. If you know there will be a certain level of emotion within your divorce, collaborative divorce offers the best resources for a smoother resolution.

Why not divorce mediation? Essentially, divorce mediation is more about the numbers and couples coming to a resolution about division of assets, support and, if applicable, a parenting plan and schedule.  That’s not to say that emotions don’t run high in mediation, but most of my clients have reached a point where they can set those emotions aside in the interest of a shared goal to reach a resolution.

As for litigation, the emotional component is so strong that both parties communicate primarily and sometimes exclusively through their attorneys. In fact, litigation often heightens conflict because it encourages parties to take extreme positions in the hope of getting an advantage with the judge.

Collaborative divorce has a number of built-in tools to address the emotional component.  First, most collaborative divorce teams include a divorce coach/facilitator. This professional, typically somebody who has some sort of counseling background, takes the initiative to meet individually with both spouses before the first team meeting to get a read on what led to the break-up and how he/she communicates with his/her spouse. This is not a therapy session but more of an exploration of the triggers that can lead to emotional reactions that can derail a negotiation.

For example, perhaps one spouse tends to talk in a condescending tone or roll his/her eyes to the agitation of his/her spouse. This can take a civil discussion into another direction if not addressed. The divorce coach can make one spouse aware of this habit and help him or her to try to avoid triggering the other. The coach can also work with the other spouse to develop techniques to prevent the triggering behavior from distracting the negotiation.

In addition to coaching the parties outside of the meetings, during the negotiation meetings, the divorce coach will pay attention to any the signs that emotions might be rising. The coach has a variety of techniques to redirect the parties (or attorneys) if their verbal or nonverbal contributions are counterproductive.  Other collaborative divorce team members—e.g. attorneys, financial professionals, accountants, etc.—also provide an extra set of eyes and ears.

The collaborative process post brief is another way to assess the emotional dynamics in a negotiation.  After each meeting, the attorneys meet with their respective clients to see how they are feeling.  Next, the professional team discusses the clients’ reactions and different aspects of the session. The emotional component will be one of those. How did the couple interact, and could it be better? Should we change something for the next meeting? These are all variables that are discussed and scrutinized.

A recent negotiation had a divorcing couple seated across the table from one another. This had a negative impact on one spouse, who never lifted her head up when she spoke, averting eye contact with her soon-to-be ex. In our post-meeting session, the team noted this and decided to sit the two diagonally from each other rather than directly opposite to have more an open discussion. The divorce coach also followed up with each party with feedback.  This improved the communication in the next session.

Preparation stands a key component of a smooth negotiation meeting. The best tool for that is a prepared agenda distributed to all parties well in advance of the session. Even more important is the collaborative divorce team sticking to that agenda. Introducing topics not mentioned on the agenda can blindside one or both parties and heighten emotion. Worse, it can create ill feelings and counteract the productive portions of the session.

Third parties can also have a negative impact on a divorce negotiation and heighten the emotional element. During my career I have been part of many productive and meaningful negotiating sessions where both parties seemed in agreement, only to come back to the next session where one spouse had talked to a family member/friend and did an about face.

Part of the role of the divorce coach is to get a sense of each spouse’s sphere of influence. This is not an easy task as the impact of third-parties may not be noticeable at first. Yet once a determination is made about a third-party, the divorce coach and team can help that particular spouse decide whether his/her concerns are being addressed–or the ones of the friend or family member—and who, ultimately has to live with the outcome.

At the end of the day, YOU have to be able to live with the divorce agreement you and your spouse come up with today and years from now. While getting a divorce is an emotional event, you will be better served if you can remain in control of those emotions to make sound decisions for your future. If you have a divorce where you suspect emotions might get the better of you or your spouse, a collaborative divorce with a divorce coach/facilitator as part of the team can really make a difference.


Hiring a divorce mediator

image of man from The Massachusetts Council on Family MediationOne of the stumbling blocks for many people getting divorced is a lack of knowledge about the process and, in some cases, making unwise decisions about the professionals to hire to assist them. That’s not a knock on anybody. If you have never been divorced, this is all new territory. If you plan to use divorce mediation to come to an agreement, being knowledgeable about hiring the right divorce mediator is even more critical.


For starters, divorce mediators are not licensed, and you do not necessarily have to be an attorney to become a divorce mediator. It’s a service you can offer as part of your law practice. It’s also a service that some mental health and other professionals offer as well. If your mediator is not an attorney, he or she will write a memorandum of understanding after the mediation, but you will need to hire an attorney to prepare all of the necessary court documents at the end of the mediation.  So, you should research and scrutinize the person you are considering.

The Massachusetts Council on Family Mediation provides a great resource to find mediators in your area. In addition to providing a way to search for mediators by town, the site includes profiles of mediators and highlights their experience. Another benefit of The Council is that the organization provides a certification process for mediators who have more than 100 hours of mediation experience.  In order to be certified, eligible mediators have to provide evidence of training in specific divorce related topics and to submit to a review of multiple examples of divorce agreements they have prepared after successful mediations.  Once certified, these mediators are required to continue with regular trainings to stay current.

When doing your research, you want to interview at least two to three mediators prior to making any decisions. Part of that interview should include questions on the mediator’s approach and fees. You also want to ask about their training and certifications and how long they have been a mediator.

Another key question is the percentage mediation makes of their practice. You will want to work with somebody who does mediation as a good percentage of their practice. Practice makes perfect, right? It stands to reason that a mediator who does more mediation will be more efficient and skilled.

You should also consider the strengths of the mediator. While it’s true you do not necessarily have to be an attorney to do divorce mediation, knowledge of the law and, more importantly, current law greatly benefits the negotiation.

Selecting a mediator who possesses a financial acumen is also key. A vast majority of the issues that need resolution in a mediation are finance-related. Not every attorney who practices mediation has the same knowledge and skill level when it comes to finances. If your divorce involves more than the standard real estate and retirement assets, you will want to factor that into your selection process.

Costs and fees certainly play a role. Many divorcing couples choose mediation for that reason. Yet fees and costs associated with mediation can vary. You can factor in cost in your decision-making. As can often be the case, if you select solely based on price and not the skill of the mediator it can end up costing you more in the long run.

Quite naturally, if you know somebody who has used a mediator and has positive things to say, you might want to include that professional in your pool of candidates. You should still go through the same process of interviewing and checking references on that mediator.

MOST IMPORTANTLY, you want to feel comfortable with your mediator. You want to feel like you have a rapport, that the mediator is listening and responsive to your concerns. This can often be difficult to determine in a short half-hour meeting with prospective mediators. That’s why it’s so important to come in with questions and have an open and frank discussion.

At the end of the day, the choice of a mediator is one you make on your own. It will include many variables: costs, references, style, etc. In the end, it might come down to your instincts or gut feeling. You can make your gut feel a whole lot better by doing the legwork prior to your decision.


Why you don’t want to go to court

“I’ll see you in court!” and statements like “having your day in court” might sound good and make for good drama. In divorce, unless you have no other alternative, it’s not a place you want to go for numerous reasons. Particularly if you and your spouse are able to come to an agreement through mediation or collaborative divorce.


Litigation costs can add up

Cost is one of the primary reasons. The litigation model is extremely expensive.  The preparation of pleadings and responses is a formalized process. Often, more form than substance.

Paying an attorney to appear in court is another big expense. Not only do you pay for the hearing itself, you also pay for travel time and the expense of your attorney waiting around for your case to be called.  It is not unusual for the waiting around to be the biggest expense. This can sometimes take all day with your time actually in front of the judge being very short in comparison.

Your personal business becomes everybody’s business

Beyond cost is the public nature of appearing in court. Your personal business will be aired in a very public forum. You may know people who work at the courthouse or who are in attendance for other reasons. Even having people you don’t know in the courtroom waiting for their turn before the judge can feel quite invasive. In a mediation or collaborative divorce, the only public document that is public is the divorce agreement. If a case is in litigation, the court file can also include claims and cross claims, motions and affidavits, all of which are open to the public.

Third-party control

More than any other kind of divorce, in litigation the power of the outcome lies in the hand of a third-party—the judge.

The judge sees literally thousands of cases per year. He/she will not know you or know very little about you. As one of three to eight probate judges in your county, you may or may not have the same judge for each appearance. Without much exposure to you or your spouse, it can be very difficult for a judge to know who is telling the truth or not. And they don’t have a lot of time to try to figure it out.

A judge makes many decisions based on pre-existing formulas. That can include division of assets, child support, parenting schedules, real estate, etc. This occurs when both parties cannot come to agreement before appearing in court.

Additionally, to make any changes to a temporary order or agreement also requires an appearance in court. Appearances in court are then subject to the court calendar and that can take time. Not to mention the added legal fees and other expenses associated with a further visit to court.

The contrasts of divorce mediation and collaborative divorce with litigation are almost night and day. Spouses come to the negotiating table in an effort to come to some sort of agreement. In divorce mediation, couples will do the legwork to provide all the needed financial statements and other pertinent materials, saving significant.

While couples in litigation are subject to formulas for the majority of things that need to be settled, divorce mediation and collaborative allow for thinking outside the box. For example, in litigation, a judge may order the family home to be sold and the proceeds split if one party cannot buy out the other. In mediation or collaborative, couples may negotiate a plan where one party can stay in the family home and make payments over time to the other spouse with an agreed upon date of transferal of the property.

Parenting schedules, alimony and child support payments can also be negotiated rather than being slave to a formula. Pensions, real estate and other assets also can be negotiated through mediation or collaborative.

Consequently, you and your spouse control a large part of the outcome of your divorce settlement. The particulars are discussed in private, outside the earshot of the general public. You appear in court before the judge merely to submit your agreement.

Finally, divorce mediation and collaborative divorce will cost significantly less on an emotional level than your average litigation divorce. Yet as anyone who has ever gone to court will tell you, the cost goes far beyond dollars. Each court appearance has the potential to negatively impact the relationship with your ex and, potentially, your children.

Nobody wins in any kind of divorce. In divorce mediation and collaborative divorce, couples tend to lose less and create a basis for interaction as needed after the divorce is over. When you go before the judge, the outcome and fallout from that outcome can have a lasting impact.


Why divorce mediation costs less

Many divorcing couples choose mediation as a means of reducing costs. Some might make that decision without realizing why it costs less. To that end, it’s quite simple: couples have to do a considerable amount of the work that is usually the responsibility of their attorneys.

  • Last month, we covered some of the documents couples need to bring to the very first meeting with the attorney. Those include:
  • Bank statements – joint and individual;
  • Mortgage statement indicating the amount of the monthly payment and mortgage balance; also, a copy of the deed;
  • Second mortgage or home equity line statements;
  • Pay stubs (last three stubs are required);
  • Tax returns (last three or four years returns with paperwork like W2’s, 1099s, etc.);
  • Insurance statements (home, auto and healthcare);
  • Auto loans, titles to vehicles;
  • Credit card statements (joint and individual);
  • Retirement fund statements; and
  • Investment account statements (individual and joint).

Collecting those physical documents is just the start. You and your spouse need to understand the spending in your marriage and household. This is so that you know what it costs you to live before you reach a financial settlement. You will also have to fill out a court mandated financial statement.

In many marriages, one spouse will handle most, sometimes even all of the finances. When marriages like that end, preparing and understanding the financial documents for mediation can be quite an eye-opener.

Not only do you need to understand monthly budgets vs monthly income, the next step is to educate yourself on marital assets and liabilities, things like annuities, 401(k)s, pensions, real estate, mortgages, loans, credit cards and more. This can be a little tricky for a spouse who has been on the outside of the financial dealings in a marriage. Even for one who has been involved, understanding how something like a pension works and negotiating that as part of a divorce settlement can be challenging

If you have children, you will also develop a parenting plan proposal. Creating this involves considerable thought on your part and then discussion with your spouse. A parenting plan usually starts with living arrangements. Will one spouse stay in the family home with the kids? Can you afford to keep the family house to make that happen?

The parenting plan will also include components such as visitation schedules, health care, schooling, etc. It will also have more detailed things like summer camp, piano lessons, after school sport pickups and more.

Working out these kinds of things takes some time and effort on the part of each spouse. You really need to put some thought into how you see your post-divorce life.

By this point, you might be wondering what work is the mediator doing?

The divorce mediator reviews your divorce proposal, asks questions about things that you have not considered and helps facilitate the discussion of each party’ s proposal. A critical question is what about this proposal is important to you? This very straightforward question gives the couple an opening to discuss their respective priorities in the divorce and how those priorities play into the proposal being made. Focusing on the “why” behind a proposal helps the parties brainstorm about whether it is possible to meet their respective priorities in more than one way. The hope is that explaining the priority behind a proposal to a trained, impartial third-party can result in a discussion leading then to an agreement.

  • Essentially, the divorce mediator guides the negotiation of the various components of the settlement and then writes the Divorce Agreement and all of the other paperwork needed to prepare a complete package for the court. You and your spouse have to decide what you want and what you can live with.
    That means identifying the issues you will fight for and what you will accept. Would you be willing to settle for a little less in one area than if you received more concessions in another area? Spouses need to have an idea in their minds about what these issues are and be okay with the idea that it won’t always be exactly what they want but something they can live with.
  • Finally, in a mediation the parties usually go to the court hearing on their own.
  • For other types of divorce, collaborative and litigation, attorneys can and sometimes do a lot of the collecting and heavy lifting. There’s a price to pay financially for that but for some people that price is worth it. Divorce mediation costs less because you are doing much if not all of that work for yourself. Couples choosing a type of divorce solely on financial considerations need to be aware of this going in. It costs less because you are doing more of the work.

Preparing for divorce

Can you really prepare for a divorce? Yes. At least in some respects. While everybody handles divorce differently, there are some approaches that make getting through the process easier.

Have your financial records in order

One thing that can greatly expedite reaching a divorce settlement is having copies of your financial documents ready to go from the beginning. Those documents include your most recent:

  • Bank statements – joint and individual;
  • Mortgage statement indicating the amount of the monthly payment and mortgage balance; also, a copy of the deed;
  • Second mortgage or home equity line statements;
  • Pay stubs (last three stubs are required);
  • Tax returns (last three or four years returns with paperwork like W2’s, 1099s, etc.);
  • Insurance statements (home, auto and healthcare);
  • Auto loans, titles to vehicles;
  • Credit card statements (joint and individual);
  • Retirement fund statements; and
  • Investment account statements (individual and joint).

Having these documents ready for the first meeting with your attorney makes the job of the legal professionals involved much easier. Doing all your prep work before an initial meeting also makes it easier on you in one sense in that you are being proactive and taking steps toward your post-divorce life. That doesn’t take away from the fact you are still going through an emotionally trying experience.

So, how do you prepare for that?

The emotional challenge

Whether you initiated the divorce or not, ending a marriage is an emotional experience. You will be affected by the process and outcome. The best you can hope for is “less lousy”.

How do you do that?

First, recognize you will be going through a significant life transition and will need a support network. That network can consist of family, friends, clergy, therapists, barber/hair stylist, pretty much anybody who can lend a kind and considerate ear and be there for you. Having at least one or two “go-to” people will be key to dealing with the ups and downs of going through the process and life afterwards.  That said, turn to those people for emotion al support – not financial advice or legal advice!

I encourage divorcing spouses to focus on the future relationship that you want to have with your ex. If you have children, this is particularly important as you will have to see your ex in order to raise your children. Part of that focus should be picturing what your future relationship might look like:

  • Will you both attend parent-teacher night?
  • When attending sporting events and other activities, will you sit together, close by or avoid contact altogether?
  • What kind of relationship will you have with the parents of your ex? If you are close now and want to continue that after the divorce, how will that be received by your ex? How will it impact the kids?

There are many other possible considerations. By thinking about these things now, it can help you get through the process in a way that doesn’t damage relationships you want to keep.

For example, blaming your ex and trying to punish him/her in the divorce will have an impact on relationships with his/her family. If you want a relationship with the family of your ex after the divorce, your tone and approach are something to consider in conducting yourself during the divorce.

Divorce is not easy. Nor should it be. Ending a marriage is a pretty serious thing. Yet by being prepared in advance from a paperwork standpoint, you help clear a path for smoother settlement. Likewise, your emotional preparation can lay the foundation for you and your family after the divorce. This doesn’t mean there won’t be a bump or two along the way. You will just be ready for them.


Do you believe your spouse will voluntarily and honestly disclose all relevant financial information?

Photo by rawpixel on UnsplashThat’s one of three questions I ask anyone considering divorce mediation. This may seem a bit extreme considering the nature of divorce mediation where couples essentially agree on the divorce and work with a mediator to come to a settlement. Yet it’s a question divorcing spouses need to consider before starting mediation.

In many marriages, partners assume different roles in the household. Some split up the financial tasks 50-50. In more marriages than you think, one partner will control all the finances with the other knowing little or nothing at all about bills, bank accounts, insurance credit cards, etc. So, when divorce occurs, that person is more than a little in the dark.

Many people in that situation might just go along with their spouse as they have done throughout their marriage in letting him/her handle everything. That’s partly why I ask for the following documents from mediation clients:

  • Three years of tax returns
  • Health and life insurance coverage and policies
  • Statements from every bank account, joint and individual
  • 401 (k), IRA and other retirement fund statements
  • Statements for current liabilities

These documents are necessary when drafting up a divorce settlement. It also provides the spouse who is unaware of finances the opportunity to learn. By simple inspection of these documents, he/she can get a better idea of the overall financial picture and ask questions of his/her spouse. Its’ been my experience that spouses who do not partake in the bill paying and financial duties know more than they think. Either way, once they have the financial records, they can bring themselves up to speed or get help from a third party.

Another important question I ask prior to working on a divorce mediation case is:

Can you sit down at a table with your spouse and explain your needs and concerns without being intimidated by your spouse?

This is a very important question for divorce mediation. The idea is for the two people to negotiate with each other to reach a settlement. As the mediator, I am neutral. If one spouse can intimidate the other into concessions that might not be in their best interest or that of their children, if applicable, I cannot advise the other spouse about the consequences of that concession. (This is one reason that it is helpful to have an attorney to consult with even if they do not attend the mediation sessions.).

Similarly, if one of the spouses has a dominant or overbearing personality that can also play a part. The other spouse may acquiesce to his/her spouse’s demands based on not wanting to set him/her off. This, too, could have a great impact on the final settlement as the mediator cannot offer legal counsel to either party.

Final question I ask is:

How committed are you to reducing the conflict in your divorce for your emotional health, and if you have children, for the sake of both of your relationships with your children?

This is a huge question. Many couples choose divorce mediation as a money-saving measure. If both parties are on good terms, agree to the split and are reasonable, it can be that. Yet if there is no commitment to reducing conflict during the negotiation, it will show. And the results can have some major implications, emotionally and financially, on your lives and that of your children.

This year, 2019, marks my 20th year as a divorce mediator. During those two decades one thing has held true. If your or your spouse cannot answer yes and with conviction to those three questions, you’re in for a very difficult settlement. Even worse, the chances will be that much greater that you will be dissatisfied with some of the terms of your divorce. Correcting agreed upon terms later on can be incredibly difficult. In some cases, near impossible.

If you’re comfortable with your responses to those three questions, divorce mediation can be the most stream lined and cost-effective of the three methods (divorce litigation, collaborative divorce and divorce mediation), of obtaining a divorce. If you’re not and you go forward with divorce mediation anyway, it can be costly monetarily and otherwise.

If you feel your case could be a candidate for divorce mediation, please contact me at 978-356-2934.