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.

Collaborative divorce can save the family house

broken-houseIf that’s really what you want. For many divorcing couples, that’s what they think they want and it can make things a bit contentious. If it’s a divorce by litigation, it can lead to the court making the decision for you—usually that is to sell the home and split the proceeds. Collaborative divorce keeps the door open if you and your spouse disagree on who gets the house.

How? A collaborative divorce is a negotiation where both sides put everything on the table and explore possibilities. With regard to the family home, each spouse would need to consider:

  • Can I afford to buy out my spouse in order to keep the family home?
  • Can I afford to maintain the home after the buy out?

By having all your financial information on the table as part of the negotiation, both parties can address the feasibility of keeping the family home. For many divorce negotiations, this ends the “I want the house” argument.

With a team of experts, often including a divorce coach and a financial neutral, the negotiation can address the financial realities of keeping the home but also why keeping the family home is important to each party. It is not unusual for it to be an emotional reaction tied to not wanting to accept that the marriage is over and things will be changing—e.g. keeping the family home means something will stay the same. In some cases, just having an impartial third-party to talk to can make a spouse see the real reason for wanting the family home isn’t even about the home.

Of course, there are some very logical reasons for wanting to remain in the family home– not wanting to uproot school-age children being tops among those. It’s not at all unusual for many divorce negotiations to include language that the custodial parent will remain in the family home for a certain period of time to ease the transition for school-age children.

Temporary arrangements can come with a host of considerations as well. Who will pay for upkeep to the home or capital improvements? Is that to be split evenly or will it fall on the spouse remaining in the home? Continued joint ownership also carries tax implications as well as the practical question “Do you and your spouse get along well enough to essentially continue a business relationship—joint ownership of a home—for years to come?”

The beauty of a collaborative divorce negotiation is that it provides the flexibility to keep all options open. For example, I have a number of cases where the parties have agreed to jointly own the marital home for a short period of time, either because the market is soft at the time of the divorce, the kids are close to finishing school or there are grown children in the house who are looking for first jobs and need a place to live. There have even been collaborative divorce agreements that call for the couple to remain in the home but living in different parts (e.g. each takes a separate portion of the home). These types of arrangements can be complex. Still, it does reveal the flexibility a collaborative divorce has to offer.

This kind of flexibility is in stark contrast to litigation. Earlier in my career, in the 1980s, a common court ordered divorce judgment was for the wife to get the house and for the husband to get the retirement funds. As the housing market and the stock market have gone through a number of ups and downs, this is no longer a common (nor necessarily equitable) practice. Still, it does emphasize how collaborative divorce offers more than a black-or-white solution but many shades of gray. Today, if the parties cannot reach an agreement about what to do with the house, a court is likely to simply order it sold.

Perhaps most importantly, the process of collaborative divorce provides the resources and counseling for couples to think about the life they want after the settlement. For some, it makes them think about the real reason they want to keep the house. Many times in those cases, through discussion with the collaborative divorce team, it helps spouses realize that a clean break—though difficult–might be the best thing for all. The most important thing, however, is that the parties are the ones making the decision, not a complete stranger who happens to be a judge.

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Three things to best prepare for your divorce

I recently stumbled across a blog that pooled 48 divorce mediation experts about suggestions to help people best prepare to go through a divorce. Specifically, the author asked each for three things.  Nobody asked me, but having done this for more than 25 years, I have a few thoughts on areas where people going through a divorce can focus to make the process easier and make it one of growth.

Managing your emotions

In going through a divorce, you will experience any number of things. Sadness, anger, frustration, desperation, depression. The list could go on and on. Perhaps that’s why a few of the experts from the article advised viewing divorce mediation as simply a business transaction. That advice reminded me of the movie The Godfather (“it’s business, not personal.”). As anyone who has seen that movie knows, business was personal. Very personal.

When going through a divorce, it’s important that you be in touch with all the emotions that come with it. But do your best to not let those emotions debilitate you. Have a support system around to help you through it. That can be a parent, a friend, a counselor, the divorce coach if you happen to be using collaborative divorce, a pet, you name it.

One of the benefits of divorce mediation is that mediators are trained to notice when negotiations are getting heated or when emotions seem to be headed in the wrong direction. Calling for a simple 10-minute break can be all that’s needed for people to gather their thoughts and emotions.

The advice here is don’t deny you have emotions regarding your divorce. You clearly will. But allow yourself to experience those emotions outside the divorce negotiations as much as you possibly can.

Educating yourself on the process

Unless you have been through a divorce before or are an attorney, you are probably unfamiliar with the process. Learning as much as you can about the process can make it a little less nerve-wracking.

In Massachusetts for example, there is a very concrete list of things that must be addressed in every divorce agreement.  Learn what they are.  If that list does not address all of your concerns, explore other things that can be added to customize your Agreement.  In a collaborative divorce you will have an agenda before every meeting.  Take the time to review the agenda in advance so that you are ready to participate.

Supporting your own research, you have some great resources, starting with your attorney and if you are involved in a collaborative divorce , your coach. In the very first meeting with clients, I walk them through the process. I also try to provide additional resources where clients can get more information. And, of course, I make myself available by phone or e-mail should they have questions.

Knowing your finances

Most married couples are not 100 percent aware of all of their finances. In many households, one spouse will pay most or all of the bills. The other may be in charge of monitoring retirement funds. It is the very rare couple where each party knows everything they have for financial assets and how to access those assets.  Divorce changes all that.

Your finances are the most critical part of the divorce negotiation. You no longer have the luxury of not knowing. If you were not the one who paid the bills or managed the retirement accounts, your job as part of the divorce negotiation is to get up to speed on all your finances—mortgage payments, insurance, credit cards, piano lessons for the kids, etc.

An added part of collecting all this information is to review the financial statement prepared by your lawyer before it’s submitted to your spouse and his/her attorney and, ultimately, the court. Your attorney should be preparing drafts of your financial statement as well as other terms of your settlement. This is the time to raise comments and concerns, not on the steps of the courthouse.

So, those are the three things yours truly would recommend to best prepare for going through a divorce. The best part of these suggestions is that you have control over two of these items—learning the process and your finances. Managing your emotions may not be as easy. There may be some difficult moments before and after a meeting or proceeding, but if you have a good support team you should be able to work through them.

For some advice from the other divorce mediation experts, click here to read the blog article.

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How to talk to your spouse during collaborative divorce

cookie-trayThis may seem like an odd headline. Yet one of the beauties of a collaborative divorce is that many couples actually do learn how to talk to each other during this process. This does not happen by osmosis. It comes from working with a divorce coach prior to and during the negotiation.

In a more traditional divorce, attorneys may not want spouses talking during negotiations. In collaborative divorce, it’s very much to the benefit of the process if spouses can communicate with each other with and without attorneys present. The divorce coach as a conduit helps couples learn how to talk during the process and essentially sets up a structure for communications post-divorce.

Prior to negotiations, the divorce coach meets individually with each spouse. This session acts as a bit of a communication primer. For example, is there something you say or the way you say things that really sets your spouse off—and vice versa? Do you react in a certain way (e.g. facial expressions, body language) that takes conversations in a negative or unproductive direction?

The coach will also work with spouses on how to reframe their words to express his/her thoughts and feelings without being accusatory or escalating the tension level. For example, instead of saying things like, “You always… ___” a coach will work with a spouse to phrase it as, “I feel like this when you ___”.  This may not seem like a big deal, but it does help keep the person on the receiving end from getting defensive or as defensive.

Having a third-party who is aware of these triggers involved in the negotiation can make it much easier to avoid confrontations that can bog down the process. A coach who notices something can interject and recommend a break so that people can collect themselves.

The coach can also set up communications ground rules outside the negotiation. For example, many divorcing couples will use e-mail and texting as a form of communication during the process. While this can be a useful tool it can also create problems (e.g. one party e-mails or texts incessantly; another party is unresponsive). The coach can set up some guidelines to sidestep possible tensions.

For example, rather than e-mailing or texting multiple times a day regarding several issues, the guideline might be one party can only send one e-mail per day and the other spouse has 24 hours to respond. If he or she doesn’t, then the party who sent the text or e-mail can call or send a second e-mail or text.

With ground rules in place and the coach in place, divorcing couples can often dramatically improve their communication during the process and outside the attorney’s office. Inside the attorney’s office, we also have a secret weapon:

Food.

In my career, I can count on one hand the number collaborative divorce negotiations that did not have cookies, candies, fruits or some type of sustenance.  While this may seem like a courtesy, something you would do for guests, it is very much part of the communication process.

How? Think about it. Food, particularly desserts, are a natural way to take the conversation down a notch and in another direction of common interest. Very few people will just sit there silently and eat.

“Isn’t this good?”

“Did you try this?”

“I shouldn’t, but why not?”

“I’m going to pay for this later.”

These types of non-sequiturs can really diffuse tension, especially when you were just knee-deep in a discussion about dividing assets, visitation schedules, etc.

And if food works for a couple, it’s probably not a bad a thing to implement in your communications going forward.

When it comes to collaborative divorce, it really becomes a matter of what works best to reach an agreeable resolution. With the support of a coach and the rest of the collaborative team, spouses can and have learned how to effectively communicate to come to agreement and have a productive relationship going forward.

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Pre-nups: The key to a successful second marriage

That may sound like a strange thing for a divorce attorney to say. Yet I feel comfortable in saying that if more couples used mediation to create a prenuptial agreement prior to getting remarried, more second marriages might last.

According to HealthResearchFunding.org, between 67 and 80 percent of second marriages will end in divorce. That’s a staggering amount and we could theorize all day long about why. In my professional opinion, many second marriages fail because of the first marriage.

That does not mean if you’re planning to remarry that you’re still in love with your ex. It means that with divorce, particularly when children and financial assets are involved, comes certain commitments and obligations. Often times, people enter into a second marriage either without knowing or seriously considering what those commitments and obligations are at the time of the second marriage and what they will or might be in the future. This can create turmoil if not addressed prior to the second marriage. And that’s why I strongly encourage people who are marrying for a second time to consider mediating a pre-nuptial agreement with their spouse before entering into the marriage.

Before getting into the reasons for mediating an agreement rather than having attorneys draft something up, let’s discuss why you would want/need a prenuptial agreement.

First, the obvious. People entering into a second marriage are older and are more likely to have accrued assets. Some of those assets you may want to leave/save for your children from the first marriage. For sake of example, let’s say a vacation home. A pre-nuptial agreement for a second marriage might state that the vacation home will belong to the person who brought it into the marriage rather than being divided in the event of a divorce.  This would preserve the vacation home for the children of the first marriage.  The same could be true for a savings account that is intended to be applied to college expenses for the children of the first marriage.

People entering into a second marriage are also more likely to have obligations for alimony, child support, life insurance, and/or college expenses.  Although these can’t be changed by a prenuptial agreement, they might impact other financial arrangements between the parties.

A common reason for entering into a prenuptial agreement before any marriage is to protect a family business of one of the spouses. Many parents are afraid that transferring ownership of a business that they began to their children will create a risk of the business being divided up in a divorce.  Often they will insist that their child and future spouse sign a prenuptial agreement to prevent the ex from making a claim to the business should the marriage end in divorce. The same would hold true for second marriages.

Why mediate a prenuptial agreement?  Similar to mediating a divorce, pre-nuptial mediation requires both parties to prepare financial statements disclosing their income, assets and liabilities. Each party will express his and her expectation about what should happen with those assets and liabilities in the event of a divorce or when either party passes away.  The parties will also discuss what should happen to any assets acquired during the marriage as well as issues around future child support and or alimony if the marriage ends in divorce.

By disclosing financial information and their respective financial expectations, the parties will have a much clearer understanding of where each of them stands before entering into a second marriage.  I believe that this kind of detailed financial disclosure and discussion will go a long way towards getting the second marriage off on a good foot.  Although it is true that it is not necessary to mediate a prenuptial agreement in order to have this kind of disclosure and discussion, in my experience it seldom happens. Much like in divorce mediation, the mediator becomes the catalyst for the discussion.

Why not just let your lawyer write something up? Also like divorce mediation, I find that a mediated prenuptial agreement can be truly customized to the unique situation of the parties.  In the case of our vacation home example, perhaps the couple negotiates that if the marriage lasts a certain length of time—let’s says 10 or more years—that the vacation home then becomes a marital asset.

In another case that I had, one of the parties was giving up a job and moving to another state in order to get married.  In that instance most of the discussion was around the issue of alimony for the moving spouse if the marriage failed.  In other cases, such as a family business, the parties might choose to not address the issue of alimony at all.

When lawyers draft prenuptial agreements their primary goal is often to make sure that everyone keeps their own assets before, during and after the marriage.  That may not be the right approach for you.  Mediation will encourage you to think about and discuss what you are trying to accomplish.  That said, just like in divorce mediation, both parties should consult with an attorney and have their own attorney review any agreements prior to signing.

The true beauty of the prenuptial mediation is the air of transparency it brings. While the nature of the mediation may be finances, it truly forces couples to look at other issues that will be involved in the second marriage—e.g. the schedule of visitation of his/her/both children; future offspring and how that fits into wills and inheritances; any debt either party brings into the marriage; how the new family plans to manage their day-to-day finances.

By having these issues front and center, it lessens the likelihood of surprises during the marriage. Mediating a prenuptial agreement also diminishes the possibility of bad feelings that might be experienced by the prospective spouse receiving a completed pre-nup from his or her fiancé because they are both part of the discussion rather than one party dictating all the terms as would be the case with a pre nuptial that was not mediated.

Does that mean all it takes for a second marriage to last is a pre-nuptial agreement? If only. Yet it can slow down the process and force couples to lay all the cards on the table, which is usually a good thing—especially if it makes for a lasting second marriage.

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What you should know before starting your divorce

photo of man with attorneyHindsight might be 20-20. After a divorce, it can be downright telescopic. And that’s why it’s not uncommon for a divorced person to lament, “If I had only known that before my divorce.”  While you will learn much about the process while it’s underway, the reality is you can and should learn as much as you can about it before you set foot in your attorney’s office for that initial consultation.

When does that education start? That’s a good question and completely subjective. Are you merely contemplating divorce or is this something you and your spouse have discussed? In other words, do you need to be discreet with your information gathering? Fortunately, there are resources available that can be accessed privately to provide you with some insight even if you are just exploring the possibility.

One resource is The Divorce Center (www.thedivorcecenter.org). In addition to helpful information and articles on its site, the Divorce Center also hosts workshops. These workshops are not only about the process of getting a divorce, but some of the issues you will face as a divorced person (e.g. parenting with your ex).

If you are considering divorce mediation as a possibility, the Massachusetts Council on Family Mediation (http://www.mcfm.org) offers a wide range of information. It also includes a Find a Mediator tool if you are not sure how to begin. It’s important to note that the Massachusetts Council on Family Mediation provides certification to mediators in the state who have more than one hundred hours of experience.

For more information on collaborative divorce, you can visit the Massachusetts Collaborative Law Council website (http://www.massclc.org). Again, this is another organization where you can acquire information about collaborative divorce and offers tools for to finding a collaborative divorce attorney.

These sites should be able to provide you the information you need before seeing an attorney for your initial consultation.

Most divorce attorneys offer a free initial consultation. Depending on the attorney, that can be no charge for the first 30 minutes or first hour. You are unlikely to have an initial consultation for a longer time period than that at no charge. If the cost of the divorce is an issue—and in almost all cases it is—you really do want to be as informed as possible BEFORE your initial consultation to get the most out of that session.

Why?

Several decisions have to be made after that initial consultation. Some of those decisions are based on information. Some are based on how you and the attorney mesh and whether or not you think you might be able to work together. Both are important.

At the end of your initial consultation, you want resolution to several questions/issues:

  • Do you have a good sense of the process?
  • Do you feel the attorney was listening to you?
  • Do you feel comfortable with the attorney?
  • Was the attorney up front about fees?
  • Did the attorney give you a ballpark figure for total cost and explain ways to reduce costs?

Clearly, the money portion is important. Yet do not underestimate your comfort level as well. Does the attorney understand what’s important to you? Did you make that clear? Did you ask for referrals or do you know somebody who used that attorney?

At the end of the consultation and after some reflection, you may still not be sure about working with that attorney. While you may not be looking to spend more than you have to, it might be worth the money to pay for a second meeting. The money will be worth it if it makes the decision to or not work with that attorney easier.

Of course, the self-education does not stop once you hire an attorney. In many ways, that’s when the real learning starts. But if you do the prep work before selecting an attorney, you will be that much better off during the divorce proceedings.

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Divorce and the self-employed

Divorce and small business owners

Divorce and small business owners

Being self-employed has many advantages. No boss to report to, tax deductions, shorter commutes (in most cases), etc. Yet when it comes to divorce, being your own boss can get complicated—whether your spouse is part of your business or not. And that’s why collaborative divorce is often the best method of divorce for self-employed and the small business owner.

In its simplest form, a business is like any other marital asset. It has a certain value just like a piece of real estate. When a marriage comes to an end, property either goes to one party or the other or is sold with the proceeds divided. The trick then becomes putting a dollar value on the business. Unfortunately, when it’s a business, there are a lot of other questions that need to be answered. Those can include:

  • Is one spouse more a part of the business than the other (e.g. one spouse runs and owns the business and the other is more of a silent partner)?
  • If it’s jointly owned, will both spouses continue in the business after the divorce?
  • If only one spouse continues, how much will it cost to buy the other out?

There could be a number of variables to consider, but the primary charge is to find out how much the business is worth. For that, the divorcing couples retain a business evaluator to assess the value of the business. Please note this step only applies to privately held companies. Publicly held companies are much easier to put a value on as it’s simply a matter of tallying the amount of stock the couple own.

An important note: This step of valuing the business can add significantly to the time it takes to start divorce proceedings and come to a conclusion. Though there certainly are exceptions, in my experience, divorces that involve a small business can take at least three months longer than ones that do not.

So, why choose collaborative divorce if it’s only going to add time to the process? The simple answer is: reliance on neutral evaluators and flexibility.

As the name implies, collaborative divorce centers on an agreement in principle—to end the marriage—and the rest is about negotiating how to make that happen. A collaborative divorce is negotiated by the divorcing parties with the support of professional, neutral experts. In a collaborative divorce the parties agree that instead of each hiring their own business evaluator, which often results in the battle of the “hired guns,” the parties will hire a neutral evaluator who will consider both spouses’ interest and concerns and  value the business following best practices for appraisers. This reduces both expert fees and disputes significantly.   This enables divorcing spouses to come up with a settlement they can live with and create a foundation for the relationship they will have after the divorce.

Collaborative divorce, whether it involves small business or not, does not follow a cookie-cutter approach to reaching a settlement. It invites creative resolutions and that flexibility is extremely valuable when it comes to dissolving a marriage that involves a small business under any number of scenarios. As an example:

  • One spouse owns a small business or is self-employed; the other spouse has minimal to zero involvement in the business. The business owner wants to continue the business after the divorce. Does that mean the business owner spouse has to pay his/her spouse 50 percent of the value of the business to keep sole ownership? In some cases, yes.  Or, the non business owner spouse may receive other marital assets that have the same value (e.g. maybe the other spouse keeps the family home).  Another option might be a buy out over time, or a partial buy out with the non owner spouse keeping a share of the company in the future.
  • Both spouses work in the business (e.g. a medical practice). While some couples have actually stayed in business together after a divorce, it is not always the best scenario. Still, if that makes the most sense given the parties past business practice, part of the negotiation can involve their working relationship going forward and guidelines that both agree to follow.
  • Both spouses work in the business but agree that it’s in their mutual interest not to work together. If a buyout is not an option, the couple can negotiate any number of alternative business arrangements (e.g. one spouse takes over the business while other spouse maintains a minority ownership share or they divide the business clients between them and create two new businesses).

Of course, these are just a few generic examples. In general, no two divorces are exactly alike and that’s even truer if ownership of a small business is involved. Still, if divorcing couples can agree in general about the dissolution of the marriage, collaborative divorce provides the best opportunity to come to a resolution both sides can live with.

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Stay away from friendly divorce advice

photo of divorce advice

Divorce advice from a friend can do more harm than good.

The decision to divorce is not one you make in a vacuum. Most people who make the decision to seek a divorce have some sort of confidant—be it family member or friend—as a sounding board and source of support. It’s when that support turns into advice, particularly if that friend or family member has gone through a divorce, that things can get dicey.

Why? For starters, no two divorces are the same.

Let me repeat that. No two divorces are the same.

So when you have a friend or loved one who starts a sentence with“I went through  this in my divorce” you have to take it with a grain of salt. Even in a scenario where you have two couples who make the exact same amount of money, live in a house with the same approximate value, have the same net worth and even the same number of kids and pets, the two divorces will be different.

People are individuals and will view things differently than you do. For example, your divorced friend/family member may have cherished his/her house and felt very strongly about not uprooting the kids. You may feel taking care of the house by yourself to be more than you can manage and are open to a scenario where your spouse gets the house.

Of course, much of the advice you receive from divorce family or friends will center on the outcome of their divorce and regrets they have:

“We alternate years with the kids on (this holiday), I wish we had done ___.”

“We sold the house. I wish I had held onto it.”

“Don’t let him/her short change you on ____.”

You get the idea. And as supportive as these friends and family members are trying to be—they genuinely don’t want what happened to them to happen to you—they are truly doing you a disservice and, frankly, interfering with the negotiation of a settlement by filling your head with their issues instead of focusing on your own.

Divorce is not pleasant but it does force you to decide what is important to you so that you can proceed to negotiate. The process makes you do something that many people don’t do often enough—look into the future to try and really see the life you imagine. As much as you may have in common with the divorced friend/family member, it’s probably a safe assumption that you have a different vision of your life.

Of course, you may have some of the same concerns brought up by your support circle. That’s fine. If it concerns you, run it by your attorney. Once you have the information from the professional who does this day and day out, you might have a different perspective on the issue.

In some cases, the friend/family member acts as more of a decision-maker (e.g. a parent). It’s not an ideal scenario for a divorce negotiation but if one of the divorcing spouses bases his/her decisions on what the decision-maker thinks, it’s not unheard of to have that person meet with his or her child’s attorney. Professionally speaking it’s one thing to give the decision maker some time to voice his or her concerns but the client will have to make and live with any decision reached.

Your support circle does play an important part in your decision to divorce and the aftermath in putting the pieces back together. The attorney you choose is the bridge from the initial decision to your life afterwards. That’s why finding an attorney who has strong credentials and you are comfortable with is paramount.

Your attorney should be part of your support circle along with your family and friends. This provides you with not only somebody who has your best interest at heart, but someone with the experience and capabilities to ensure your best interests are met.

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Communication and divorce mediation

image for divorce mediationMany marriages break down because of a lack of communication or poor communication. So if a marriage can’t last due to bad communication, how can you expect those same two people to sit in a room and come to an agreement in divorce mediation? Does a neutral third-party mediator make that big of a difference?

Yes, it does.

How a divorce mediator makes a difference

Think of any argument you may have had. Would a third person in the room have changed the dynamic, perhaps making the discussion less volatile? Probably. With a divorce mediator, you have a neutral third-party who is a trained negotiator with specific credentials. Add to those variables the fact that both you and your spouse are there with a shared goal in mind—to reach a fair settlement to end the marriage—and many of the communication obstacles experienced during your marriage are neutralized.

Those elements lay the foundation for negotiation, yet the potential to fall back into bad communication patterns exists. That’s where the skill of the mediator comes in. It’s his/her job to direct the negotiation from positional—e.g. “I want the children 50 percent of the time—to interest-based—e.g. “I want to be a good parent. If I spend less time with the kids, I’m worried they won’t like me as much and eventually won’t want to come to my house at all.”

The difference in positional versus interest-based dictates the tone of the negotiation. Positional essentially paints one party into the corner—e.g. I will only be happy/agree if I have the children exactly 50 percent of the time. Interest based—e.g. I want to have a quality relationship with my children and to be part of their lives on a regular and consistent basis—opens the door to numerous possibilities during the negotiation. For example, if exactly 50 percent does not make sense either because of the children’s or the parent’s schedules, perhaps the settlement could include additional parenting time during the week or a different schedule during summer break or during winter vacations. Or both.

That’s just one example. But the mediator can refocus the negotiation by finding out what’s important to both parties and using that as the basis of the discussion and coming up with solutions.

Besides the focus, the mediator seeks to diffuse old communication habits that circumvent discussion. For example, the parties may trigger reactions from each other just by their body language.  One person may roll his or her eyes when their spouse says something not to their liking. The mediator, as the quasi communication coach, can acknowledge the eye roll but try to convert it into a meaningful discussion.  For example, “You don’t seem to be receptive to that suggestion, can you explain why?”

Another way the mediator reads body language is to assess when a heated conversation is productive and when it is not. In a one-on-one discussion/argument during their marriage, a couple might continue to go at it even when the body language of one person is clearly not responsive. The neutral, third-party mediator can read the body language and call for a break if necessary. In 20-plus years as a mediator, it’s amazing to see how stepping away from the negotiating table and collecting your thoughts can refocus the discussion.

Another common communication trigger is when discussion sounds more like accusation.  For example:

“You never listen to what I say.”

While that may or may not be true, the accusatory nature of the statement is likely to put the other person on the defensive. A mediator might guide the spouse who made the statement to instead say something like this:

“I feel like you never listen to me.”

Rephrasing that statement gives ownership to the person who said it instead of putting it on the lap of their spouse to refute. It then becomes the feelings of the spouse who said it. It may seem like a small thing, but it can prevent stalls in communication and a “he said/she said” argument.

The mediator is the main reason why couples who could not communicate during their marriage find a way to do so during a divorce negotiation. Yet the intent of the couple divorcing is a factor as well. After all, most divorcing spouses enter into mediation because they are looking for a less contentious and cost- effective way to get divorced. By starting essentially on the same page, it creates a better platform to begin the negotiation.

So, not only is it possible for couples who could not communicate well during their marriage to do so in negotiating a divorce, but many couples leave mediation with a better understanding of how to communicate with each other going forward. Frankly, the tools and the communication skills divorcing couples develop during this process could save thousands of dollars in future legal fees as exes can now work things out without a trip to court.

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Communicating to get divorced

Road SignsHow many couples point to a lack of or the breakdown of communication as the reason for their marriage ending? Without any hard data, I would have to say most. Yet, it’s ironic that many couples finally learn to communicate with each other as part of their divorce, particularly if they choose collaborative divorce.

The collaborative divorce model puts a premium on communication. That includes spouses speaking directly to each other as part of the negotiation. You will not find that in other types of divorce where attorneys do all the talking.

You’re probably wondering how successful collaborative divorce could be if it relies on people who probably weren’t very good at communicating with each other negotiating important issues directly. Quite simply, the collaborative divorce model includes a coaching element where we work with each spouse on how to communicate with their ex within the process. With most collaborative divorces, there will be an actual “divorce coach” on the team whose job it specifically is to help couples communicate better throughout the process and afterwards.

Part of that coaching involves the divorce coach sitting down with each spouse individually and reviewing the way they have up until this point communicated with his/her spouse. That includes discussion of the things his/her spouse says or does that pushes that pushes his/her buttons and also the things that he/she does to push his/her spouse’s buttons.

For example, maybe one spouse speaks in a condescending tone and that puts the other spouse on the defensive. Maybe there’s certain body language one spouse uses when speaking to the other that indicates that either he or she is not listening. The divorce coach, in speaking to both spouses, tries to help the parties understand how all those past behaviors could interfere with communication during the negotiation.

This coaching serves many purposes during the negotiation. First, by putting those issues out on the table, the divorce coach can now give each spouse the tools to address these communication issues. It could be as simple as starting a sentence with “I” rather than “you” or developing a catch phrase so the other spouse knows to pay close attention to what is being said. For example, one spouse could start key points by saying, “I feel it’s important that…”

While tools can improve communication during the negotiation, it does not preclude spouses from reverting to old habits. That’s when the divorce coach’s expertise is even more important. By noticing the tone, body language and other indicators, the divorce coach can intervene if he/she feels things are about to get heated or take a negative turn or unproductive turn. Often, a short break for the spouses to regain his/her composure is enough to prevent a breakdown in the negotiation.

With the divorce coach as the communication guardian, the negotiation can better focus on the issues on the table. Hopefully, that leads to a more satisfactory result for both parties.

For couples with children who will be co-parenting for years to come, working with the divorce coach provides a wonderful tutorial on how to communicate going forward. The tools used during negotiation can just as easily be used by exes when discussing potentially contentious topics like holiday schedules, weekday visitation and other issues. Quite honestly, these tools and the communication skills divorcing couples develop during this process could save thousands of dollars in future legal fees as exes can now work things out without a trip to court.

More importantly, this new kind of family—with communications ground rules in hand–will be able to function more effectively, even harmoniously. Yes, a collaborative divorce still represents the end of a marriage. Yet for many couples, collaborative divorce can save (or at least improve) the future relationship.

 

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How long will my divorce mediation take?

image of divorce mediationIt’s a question that’s asked quite frequently. The answer is pretty standard:

“That depends.”

Couples often choose mediation based on the presumption that it will be faster than going through litigation. Typically, that’s correct, but not always.

Factors arise in divorces of all kind—litigation, mediation and collaborative—that can prolong negotiation. “That depends” is my stock answer because it really does depend on the motivation of the divorcing couple to do the homework and participate in the process.

As a general time statement, a divorce mediation will take four to six months. During that time period, the following will take place:

  • Parties will exchange a comprehensive list of financial records
  • Three two-hour negotiation sessions will be held
  • Parties will prepare their financial statements and I will prepare the paperwork to be filed with the court

The negotiating sessions are approxmimately a month apart, which I do for many reasons. The first reason is that negotiations tend to produce action items for both parties. So, the divorcing couple will need some time to track down financial and other records, prepare budgets and financial statements and sometimes hire appraisers.

Another is emotions. While we try to keep the negotiation civil, it’s an emotional process. We are talking about the end of a marriage. A month between meetings can provide enough time for both parties to adjust to changes and get their composure, if needed.

Of course, couples who come in with their financial documents organized and complete and who have verbally discussed and agreed to most of the larger terms of the divorce can settle even faster. Four months really is generally the minimum amount of time for a fully prepared couple who agree to reach a settlement.

Except for one previous couple.

In my two decades as a mediation attorney, there was one couple who resolved their divorce in three months. The even more amazing part of their speed was that the couple had a business together. Yet when we began mediation, their financials were complete and they had already agreed in principle on virtually everything. It was essentially a matter of going over the details, fine tuning the agreement that they had reached and putting it all in writing and signing.

Yet if you’re reading this and thinking that could be my spouse and I, that’s probably not the thought process you should take into any negotiation, particularly a divorce.

As mentioned in previous blogs, your divorce must be something you can live with not only at the time you sign it, but for the rest of your life (and hopefully that’s a very long time). Rushing through your divorce to save some money on legal fees is penny-wise and pound-foolish. Actually, it’s not even penny-wise as an agreement that’s not carefully thought out and executed may eventually end up before the judge as a contempt action or for modification. And that’s what you were trying to avoid in the first place.

If you and your spouse are concerned about timing and costs and have chosen mediation for that reason, that’s fine. But be ready to put in the work. Get your financials in order. Be responsive to requests for information. Be willing, ready and able to negotiate, realizing you may not get everything you want. Come into the negotiation having thought about not only what you want but what you can live with. With this outlook and commitment to do the homework, four to six months is very reasonable timeframe.

While you can reach a settlement a little before that four-to-six month window, it’s also possible to extend far beyond if you are not willing to do the work. Or, if other circumstances come.

I have had cases where we began mediation and then I did not hear from the couple for many months (in a few cases, more than a year). In most of these cases, some things happened during the delay (the sale of a house, or trying out a parenting plan) that made it easier to reach a resolution when they resumed negotiations. The downside was that when negotiations reconvened, it was almost like starting from scratch. All the financial documents had to be updated and financial statements revised.

So if you and your spouse opt for mediation, you need to realize it’s far from a “quickie” divorce. It will take work, negotiation and compromise. But if you’re intent is to reach a settlement that works for both of you, your best bet is to put away the stop watch.

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