13 Jul 4 Signs That Mediation or Collaborative Law May Not Be Best For Your Situation
In a recent interview with People magazine, singer-songwriter Jewel discusses her divorce from Ty Murray and the challenges she faced in the process. She describes co-parenting as work, since “you obviously don’t get a divorce because things are going well.”
Some people wonder whether a non-adversarial process such as mediation or collaborative law are appropriate if there is tension or conflict between the parties. In our experience, most divorcing couples experience (in varying degrees) tension and conflict and difficult emotions such as sadness, anger and fear. This does not preclude parties from using a non-adversarial process such as mediation or collaborative law. As we mentioned in our previous blog post, conflict can be an opportunity to develop a deeper understanding of both parties’ needs and find solutions that satisfy both of their goals.
There are a few signs, however, that a non-adversarial process may not be the best choice for your situation.
- Lack of Disclosure
In mediation and collaborative law, the parties agree to fully and honestly disclose all financial information, such as financial statements, budgets, income tax returns, etc. The parties are also required to fill out and exchange financial disclosure forms required by the court. The forms list all assets and debts, as well as income and expenses, and are signed under penalty of perjury. If one party believes the other party’s financial disclosures are false and he/she is hiding assets, withholding information and/or concealing the truth, a non-adversarial process is not the right approach. The entire process is undermined if the parties are not open and truthful, and agreements based on false disclosures are subject to being overturned.
It is common for people going through a divorce to carry feelings of frustration and disappointment, and perhaps blame the other party for the ending of the marriage. In the article “Conscious Uncoupling” on Goop.com, authors Sadeghi and Sami write, “since most of us don’t want to face what we see as a personal failure, we retreat into resentment and anger, and resort to attacking each other instead. We’ve put on our armor and we’re ready to do battle.” As mentioned above, these feelings do not mean that a non-adversarial process is inappropriate. However, if either or both parties are stuck in a place of wanting revenge – wanting to see the other person punished in some way – as opposed to wanting a resolution that works for both people, it is difficult to reach an agreement that both people can accept. For a consensual process to work, parties must be able and willing to move beyond wanting revenge to wanting a resolution that will work for both parties.
- Lack of Motivation
Since a non-adversarial process is voluntary, both parties must be willing to cooperate and work together to reach a resolution. In our experience, people who continuously threaten to quit the process and proceed with litigation often have a harder time reaching settlement. When people have one foot in and one foot out, we recommend that they spend some time reflecting on whether mediation or collaborative law is right for them. We suggest that parties ask themselves why they want a non-adversarial process – what is their motivation? For example, they may want a non-adversarial process in order to protect their children, keep things private, or maintain control over the decisions that will impact their lives. When people have strong motivations to use a non-adversarial process, they are more committed to making it work. On the other hand, if parties are only motivated to use a non-adversarial process to save money, but otherwise would be just as happy to litigate, that motivation may not be enough to help get through difficult issues in mediation or collaborative law.
- Domestic Violence
If there is physical or emotional abuse (sometimes called coercive control) in a marriage, a non-adversarial process is not appropriate. For mediation or collaborative law to be successful, each person must feel safe to voice their opinions and concerns and disagree with the other party. If there is concern for one’s safety, the party may not feel protected in the mediation room or capable of defending their position. The support of an attorney in litigation advocating for their rights on their behalf may be a better choice.
If you are still not sure which process is best for you we recommend scheduling a consultation with a mediator or collaborative attorney. Click here to schedule a consultation with Jill or Kelly.