Couples who seek a divorce may be told about divorce mediation, but not truly understand what the process is. Do they need lawyers? Will they be in the same room? Can a high conflict divorce be resolve through mediation? Can mediation help get you over the finish line if you and your spouse are already close to where you want to be on the agreement?
Susan Guthrie, a nationally recognized family law and mediation attorney, addresses some of the biggest myths and misconceptions about divorce mediation with host Evan Schein on Episode 15 of the Schein On Podcast. She is an internationally recognized expert on online mediation, creator and host of the Divorce and Beyond Podcast and Learn to Mediate Online Podcast. She is also a founding member of the Mosten Guthrie Academy for mediation training.
Did you miss Episode 15 of the Schein On Podcast? Listen here!
Dispelling the myth of being alone in mediation
Divorce mediation is not a one-size-fits-all process, Guthrie said, pointing out that the direction of a client’s mediation depends on what their specific case calls for. Often, a team is created to work with the clients, including an outside coach, so that couples don’t feel they are alone in the process.
“Many people choose not to go to mediation,” Guthrie explains, “because they feel unprepared to participate actively with their spouse in those conversations.” She continues:
They’re like, “I am under enough emotional stress right now. And by the way, I’m not a lawyer. I don’t understand the law. I’m going to get taken advantage of.” And so many people will just automatically opt out of mediation out of that fear.”
And I think the best mediation process is one that is built around what that couple needs. And often what that couple needs is additional support beyond just their mediator.
Your mediator may be an attorney. (In my case, I am an attorney.) A lot of mediators are therapists. Some are financial professionals, but your mediator is not your be-all and end-all in most cases. And it may be that you need additional financial professionals. You may need individual financial professionals. You may need a neutral, joint financial professional, and it’s the same thing with coaching…. So there’s a myriad of other professionals.
And for me, having done this now for 30 plus years, the best resolutions are where, from the very beginning, we sit down and look at what this couple needs and get them that team before we take them into the process.
Can couples in a high conflict divorce succeed with mediation?
Guthrie says they can if the mediator has experience mediating in these types of situations. “The thing with a mediated high conflict case,” she explains, “is that the mediator needs to be skilled in dealing with high conflict individuals. Understand a mediator cannot alienate the high conflict individual…. [Mediators] have to support the other individual while also maintaining some semblance of control over the high conflict individual. It’s a tight rope. I will say that. But it can be done.”
For Guthrie personally, this means only agreeing to mediate in a high conflict divorce when the non-high conflict party has a coach who can help his or her client advocate for him or herself and explain that mediators are not protectors; they are neutral parties.
Should your divorce attorney be a part of your mediation sessions?
One fear that individuals and couples may have is that their lack of knowledge of the law can harm them during mediation. Having a consulting attorney guide you throughout the process can alleviate that fear. “If I had my way, consulting attorneys would be a part of every divorce mediation,” Guthrie says. “At all times during a divorce negotiation, during those discussions, it is helpful to each party to be able to talk to someone who is there to give them individual legal advice and support, just so that they know what the law provides for, and why they may want to vary from it.”
Can going through mediation help you avoid financial disclosures?
No, Guthrie says, but it’s a common misconception that it can. In most states, she explains, financial disclosures are simply part of the process, whether you are in mediation or not. The disconnect could be that because mediation is voluntary, parties may feel they don’t have to disclose certain information. But that does more damage than good to the process, Guthrie explains. “If other party doesn’t feel that they can then make educated decisions because they’ve not been given appropriate financial information, the process is going to implode and will not be able to proceed.” To address this issue, Guthrie says, she covers financial disclosures in the initial consultation with a couple.
The benefits of divorce mediation
Guthrie explains that there are a lot of reasons why couples choose divorce mediation. One of the primary reasons is the desire to work cooperatively and/or amicably. Many couples try mediation because it can take less time.
Another common reason is cost: mediation is typically less expensive than litigation; “it doesn’t matter if you have very little money or if you have all the money in the world,” Guthrie says. “No one wants to spend it on their divorce.”
But one of the main benefits of divorce mediation is confidentiality. As Guthrie says, people aren’t always on their best behavior at the end of a relationship, and may have things they wish to keep confidential:
Sometimes things happen that they just don’t want out in the public domain. And mediation is a confidential and private process…
Some people’s children might be going through difficulties, and they don’t want to bring that into a custody issue in court. We have self-employed individuals and perhaps their income tax returns are not… pristine, and they don’t want to talk about that in a courtroom. There are many reasons why privacy and not airing your personal laundry in a public setting can be appealing to people.
So usually, it’s one of those or a combination of those that brings two people to the table. Very often, there are different motivators on each side of the table, it doesn’t really matter. As long as they’re committed to being there.
Finally, if mediation isn’t working, the couples have an option to stop. “You always have a more traditional litigation approach to fall back on,” Guthrie says.
The future of mediation in an online world
Because Susan Guthrie was at the forefront of online and virtual mediation long before the pandemic hit, she’s had an opportunity to see what has changed, and determine what works. For the last six years, Guthrie has conducted her mediation sessions online, and has trained over 18,000 legal and mediation professionals during COVID alone on how to conduct mediations online. She says there are science-based reasons why virtual sessions may be more successful. “In many cases,” she says, “my clients are sitting on their couch with their dog in a comfortable environment,” and that can make a real difference. She explains:
It’s just neurobiologically shown that you can tolerate more conflict and emotional contact when you are face to face, but through a screen, as opposed to across the table from each other. So people are much more able to regulate their emotions because it does get emotional. Your adrenaline is going to go up. Your cortisol is going to go up – but less of it when it’s virtual.
And then who really wants to sit in traffic, or leave work early to go to their mediation? The convenience of doing it virtually was attractive to people.
Of course, for many couples (and legal professionals) online mediation and dispute resolution were the only options for the last year or so. Those people, Guthrie says, “who would not normally have tried mediation, or collaborative law, or negotiated settlement were forced to try it or gave it a try, and found, ‘Hey – this is pretty great.’” As a result, she says, people who might have turned first to litigation are now turning toward mediation and dispute resolution as their first option. Even the professionals are benefiting from online services. According to a survey Guthrie conducted with the professionals she trained, 100% of those professionals said they would continue to offer online services (or a mix between online and in-person services) to their clients even after COVID was done: “No one said ‘I’m going to go back to in-person only,’ out of all the people who answered it. And I think what we’re going to see is that it’s going to be kind of driven by what the clients want, because we are a service industry…. Our clients are going to want that convenience.”
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