Katherine Miller, Mediator, Attorney, and our guest this week on THE Amicable Divorce Expert podcast made a statement that I can’t stop thinking about: “Divorce is a people problem with a legal consequence.”
That is so true when talking about who should mediate and who should ask a Judge to make decisions for them. I do not think mediation can work for everyone, nor does Katherine Miller. While we both think that mediators should help their clients understand mediation and what is required of them in order for mediation to be a successful process.
Communication: In order for mediation to be a successful way of creating a divorce settlement agreement, both parties need to be able to communicate in a non-adversarial manner, be honest with each other, forgive and apologize if possible, have gotten legal advice from attorneys, and come prepared with documentation for any assets or debts that require financial authentication.
Negotiation: Mediation is a negotiation, with compromise on both sides. The mediator isn’t the decider of anything, but the parties do want creative ideas, at times, from their mediator in order to help them expand their thinking beyond what they’ve already considered for settlement ideas. The mediator’s role is to listen so intently that they can see possible compromise points that the parties couldn’t see if locked in emotion. Negotiation cannot be effective or lasting if made in emotion. Good negotiations are done with a calm mind and heart, and well thought out. Agreeing to anything just to end the negotiation because there is too much emotion involved, will not be beneficial to either party.
Emotion: Ah, and there is that aspect of mediation that mediators need to be ready for: Emotion. No, mediators don’t respond as therapists, but mediators are presented with their clients’ emotions at a feverish pitch sometimes and need to be comfortable with that. The reason for the divorce often comes out in anger and is the backdrop from which negotiations are handled. In a no-fault divorce state, the reason for divorce is typically “irreconcilable differences,” but the pain derived from the real-life reason for the divorce can’t be wiped away, doesn’t go away, and is the unspoken presence in the mediation room. When it comes out, sometimes that is all that is needed, that it gets spoken. If an apology is provided, that can generally turn the tide of the mediation to a better place for compromise. The value of a heart-felt apology is priceless.
Apology: When I’ve witnessed one person being vulnerable and open about the hurt they experienced that led to the divorce, and a meaningful apology or explanation is rendered by the other person, the energy in the room shifts to calm, to compassion, to compromise. But, most times the perpetrator just hangs their head and doesn’t apologize. Apologies can only be rendered if the perpetrator can become vulnerable enough to admit that they hurt the other person.
Legal Advice: On the nuts and bolts side of the mediation, legal advice is priceless, although it does come with a price to the attorney. It’s so worth it. Mediators tend so say, “There’s the law, and there’s what both people want to do with their decisions.” But knowing the law allows both parties to start on an equal footing so that when they go outside the law with their requests of each other, they do so knowingly. Nothing makes one party look foolish than when they insist that the law says one thing – and it doesn’t – because they got their legal advice from a previously divorced friend. Spending the money for a couple hours of legal advice provides the confidence to negotiate better and be able to know when they are presented with a good deal by their spouse.
Choosing Mediators: Mediators should be interviewed to see if they feel right for your situation, and make you feel good when you talk to them. Being knowledgeable about the law is important, even though they will not be asked to render decisions; they still have to know when a couple is making a decision that won’t fly in court. And a mediator has to know when a party is under an incorrect understanding of the law. Google law school is becoming a fan favorite. By that I mean questions about the law can be put in the Google search bar and some information can be gleaned for quick reference. But speaking with an attorney is the best way of understanding how the law impacts a person’s specific divorce settlement.
Mediation is such a great way of mending fences, embarking on a healthy co-parenting journey, and creating a settlement that reflects the spouses’ needs in order to create a positive life moving forward. If mediation is treated as an opportunity to resolve the marriage in the most beneficial way possible, it’s golden.
About Katherine:
Katherine Eisold Miller is an attorney on a mission to change how people divorce and help them divorce with dignity. She is the founder of the Miller Law Group and a Director and Trainer with the Center for Understanding in Conflict. She has been working in the field of family law for more than 35 years as an attorney as well as a mediator. She hosts the radio show/podcast Divorce Dialogues. She is co-author of the #1 Amazon bestseller “A Cup of Coffee with 10 of the Top Divorce Attorneys in the United States” and the author of the “New Yorker’s Guide to Collaborative Divorce.” Her many media accolades include interviews on CBS New York, NBC New York and features in New York Times (2), US News & World Report, ABC News, Money Magazine, Splitopia, Fox News, Huffpost, and BravoTV.
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