Once a marriage is far enough gone, the only remaining question is “How hard is it going to be to untangle our legal and financial lives and (if relevant) sort out custody?” For some couples, separating via mediation rather than litigated divorce has its appeal: Many people don’t want to cast their former spouses in the role of enemy, and mediation is a cheaper, more cooperative, and less adversarial process than a War of the Roses-type brawl.
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But not every couple is a good candidate for mediation—and it can be hard to know in advance who’s going to find the process helpful and who’s going to find it useless—or worse, enraging. To get a better idea of warning signs, I spoke to Rachel Green, the family lawyer in Brooklyn, New York, who handled my own separation ten years ago. Below, the eight signs that mediation might not be right for you.
You are not okay with the other person being okay.
“Mediation requires that both people wish each other well,” says Green. “The goal is that everybody is okay at the end of it. You have to be willing to consider the other party’s point of view, even if you don’t agree with it—that you’re willing to sit in the room and listen.” And, obviously, they have to be willing to consider yours.
You can’t accept the other party’s view of reality.
It’s easy for even the most open-minded of adults to cling to the idea that their version of events is the only version. Green says, “You have to be able to accept the idea that that the other person had a different experience than yours, which doesn’t negate your reality, and allow both to co-exist.”
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If you or your partner are really committed to their narrative—that one person is absolutely the bad guy, for example—mediation might not work. Green says, “There are some people who are quite intensely invested in feeling like the victim: ‘I’m right and the other person is wrong, and there is no universe in which the other person’s actions are acceptable.’”
She tells a story of a couple she counseled in mediation: The man had had an affair while the woman was pregnant with their first child. She had heard about this couple’s troubles in a social context, and she remembers thinking, about the man, “Who is this scumbag who would have an affair while his wife was pregnant?”
But when they came in to see her, she describes the couple’s dynamic as “somewhat horrifying”: “The wife was just one of the nastiest, most abusive people I had encountered. Granted, she was going through a hard time, but she had a gutter mouth...she was just very unpleasant to sit in a room with.”
They had about $700,000 of equity in their house and she wanted to give him about $100,000 to walk away—much less than the law allows. She was not at all willing to consider his perspective. “What I came to understand was from his perspective, he was an abused husband. And his having an affair—which is not the best way to handle difficulties in your primary relationship—was a desperate act, because now that they were going to have a baby together, he felt that he was trapped in this extremely unhealthy relationship, and this was the only way he could think of to get out. So it was very eye-opening for me.”
The couple ended up not settling in mediation.
You are not able to advocate for yourself.
In the story above, Green notes that the husband was not at all able to advocate for himself in the face of the wife’s demands, which were unreasonable as compared to the law. “He was not able to say, ‘No, that makes no sense, I’m not going to do that—I’m entitled to x, y, and z.’”
I’ve heard of cases in which one spouse is so eager for custody of the children that they will relieve the other spouse of any duty to pay child support—which is not in their or the children’s best interests. Green says, “This is explicitly contrary to New York legislative policy—the kids shouldn’t be bargained for the money. The two things are determined separately by the court, so there’s no reason to take less than you’re entitled to under the formula.”
So if this is you, get an attorney to advise you on the side. Which you should probably do anyway—Green notes that “most people who come to mediation have consulting lawyers.”
It was a violent relationship.
If there was abuse in the marriage, you are not an appropriate case for mediation. Green cites social science on violence and notes that an abusive partner is de facto not going to be able to see the perspective of the other party: “When someone is violent towards someone else, they are crossing the line of empathy.”
Infidelity can also be tough, though not impossible, to work through: In one case of Green’s, the husband had been unfaithful and in a rather public way—he was active on social media, on Tinder, and he had an alternative Facebook profile, “so he had not only cheated on her, but there was a public aspect to it, so she felt very angry, and she also felt humiliated.”
The wife first came to mediation with a four-page list of their mutual friends and family that she wanted him to agree to to never contact again. (He wouldn’t do it.) If your partner has been unfaithful and you’re angry and humiliated, it can be very tough to meet condition #1 of mediation: You have to be okay with them being okay.
You’re in a hurry.
Mediation isn’t speedy. “Time is an important element in divorce,” says Green. The couple above, with the Tinder husband, came in for a few months and put together a co-parenting agreement, and then they stopped coming regularly. They were co-parenting their kids according to the agreement, but moved no further along on their divorce.
But after a couple of years passed, the wife was no longer so angry, and they re-started mediation. Green says, “I don’t know what her personal journey was, but they were parenting well together, they both could acknowledge that the kids loved both parents and needed both parents. And then they were ready and did their property settlement pretty quickly and we finished up the divorce. She was able to forgive him, and he was able, in some ways, to apologize for his bad handling of problems that were in their marriage.
“A lot of people think if they can just get the divorce, they won’t be in so much pain, but we can file all the papers—and the painful feelings are still there. Getting the divorce doesn’t actually fix it. So time can be a useful tool for couples who don’t want to have a litigated divorce.”
You don’t actually want to settle in mediation.
Green has a list on her web site of the goals of a good divorce process, and she says that the number-one factor is “probably that both people want to settle in mediation.”
People who are even willing to try are good candidates. Even if there’s a huge amount of conflict, simply being willing to come every two weeks and sit there and discuss it “can sometimes be a magical tool. It starts to subtly shift your thinking about the issue.”
Conversely, the lengthy process can also work against you: This primer on mediation basics notes that, because the mediator can’t order you to do anything, some (unscrupulous) people will use the process to stall paying support. So if this is your ex, you can go to court early and then, if you want to, use mediation later.
You want the other party to lose, even if you don’t win anything.
If one partner is really invested in making the other person’s life worse—like not allowing her to take vacation with the kids and her family when it’s convenient, just because he wants to muck up her vacation plans—they are not good candidates for mediation. Green says, “If you feel like your ex is a narcissist or out for revenge,” mediation is not going to work.
You have a lot of money and want to burn it.
Greene says, “Mediation averages between $4,000 and $10,000,” but litigation lawyers (at least in New York City), start with a $25,000 retainer. “Most people will end up somewhere $20,000 and $200,000, but there certainly are those $300,000 divorces as well. I like to joke that divorce is one area of life in which having money is a disadvantage, because you may find [an attorney] who’s going to fan the flames and give you false hope about how you’re going find the kindly judge that is the father you never had who will see that you’re right, and that your ex is completely wrong. That’s a fantasy that is still held by many people.”
Green says that she’s never heard of anyone who’s been happy with the outcome when they went to court, “because the judges will tend to try to give both parties something. The money [you save in mediation] can be a big motivator to try to help people see the big picture and try to think of the long-term perspective.”
Still want to try mediation? Check out the primer on mediated divorces, and talk to an attorney. And keep an open mind about the process, even if feelings are running high right now. Green says she had a client who would say she tried to say to herself, “‘how will I feel about this in five days, how will I feel about this in five months, how will I feel about this in five years?’, and I thought that was a very useful question for a person to ask themselves when they’re beginning this process.”
Hey, if that Tinder wife can get over it, there’s hope for all of us.