DIVORCE MEDIATION: ARE YOU READY? Janet Miller Wiseman
Colleagues and friends frequently ask me “your work must be so hard with all those angry divorcing clients?” To tell the truth, most divorcing clients are gracious to one another, thoughtful, ready to problem-solve, frequently laughing together. Often enough, when this is not the case, a couple presents before they are prepared to divorce.
Let’s take two cases that presented recently. The first one was a couple who said they would make a Separation/Divorce Agreement, but not yet enter it with a document number to the Probate Court. They were each engaged in new relationships, he with a live-in-partner, she with a partner who lives down the street from her, but was often overnight at her home.
The couple owned an investment property, across the street from where she lived in the former marital home. The lease was soon to be up, and he wanted to move into the investment property with his new partner as soon as their renter moved out. She, on the other hand, thought that the proximity of the houses was all too close for comfort, especially for the two women who had had the same man as a partner. She wanted to offer the current renter another lease, and wanted both of them to continue to share the profit on the rent, or sell the investment property.
He spoke about building a fence in front of the marital home so they wouldn’t see each other’s comings and goings. He said even before the renter moved out, his new partner would put her home, in which they lived together, on the market that week, and they would be moving in, over his still-current-wife’s strenuous objections. He was simply going to move in, without mutual agreement.
These are not the usual thoughtful, gracious-to-one-another, divorce mediation clients presenting in my office. Most clients reach agreement on decisions rather than arbitrarily making oppositional moves. Unlike 98% of mediation clients who finish their divorce mediations, taking their court-ready documents to review attorneys and on to Probate Court, this couple came in for a single session and did not return. My guess, since they did not desire a divorce, is that the husband did indeed move into the couple’s investment property, right across from his wife’s home, without his wife’s agreement, built a fence, with no further work being done in writing a Separation/Divorce Agreement. Unilateral agreements are clearly not anything like the norm in divorce mediation.
The Second Not Yet Ready for Divorce Mediation Clients
The second not-yet-ready for divorce mediation clients was a couple in which the wife arrived earlier than the husband stating “I don’t want to be here!” The husband had been married once before and had a pre-pubescent daughter with whom this second wife and he had desperately tried to have a good relationship. They also had three children of their own. In contrast to the thoughtful, solution-oriented, gracious-to-one-another majority of divorce mediation clients, this couple was full of rage, she raising her voice to a highly disturbing, loud and shrill pitch, he shouting at her that she should have prepared for this meeting.
She exclaimed that she had been ill and depressed during the births of two of their three children and wanted to have a chance now to work on their marriage. The husband was definitely ready to end the marriage and wanted equal time with their children of 18 months and 3 years and 5 years. He cited research claiming that children, however young, who had approximately equal overnights with both parents, had a much better sense of well-being and better adjustments as adults. She cited the “tender years” doctrine which talks about children doing better with their mothers until they go to school.
The wife initially said that the children were too young to live in two different homes equal times, but by the end of the session had come around to the view, that he had he had had equal time with his daughter from his first marriage, they would have had a much, much better relationship with her, now, than they had. Their current relationship with his daughter was, indeed, dreadful. He indicated he loved their children to the sun, moon, and stars, and was perfectly capable of caring for them.
This couple would have been better off choosing decision making mediation, initially, wherein members of a couple with different views of the future can arrive at a higher level of understanding of each other’s position about the future direction of their relationship, if not reaching complete agreement. They, too, were not ready for divorce mediation.
This is a reminder to the mediator to quiz the future clients during their half hour complimentary consultation about their degree of readiness, of preparedness for divorce mediation. If they aren’t aware of their not being ready at that point, when it becomes obvious at an initial divorce mediation session, the mediator can suggest that they have an initial decision mediation session or two before beginning divorce mediation.
When one member of a divorcing pair decides unilaterally to make a move that the other objects to, the divorce mediator knows the couple is not ready to pursue a complete divorce mediation. Likewise, when a couple is on opposite ends of a continuum on how much time it is appropriate for them each to spend with their children, when they restructure into two homes, the better part of wisdom may be to start with decision making mediation rather than divorce mediation. Furthermore, if one member wants to stay together, the other to divorce, divorce mediation is not the intervention to pursue; decision mediation to help the couple reach of higher level of understanding of why they need to go in the direction they each are pursuing is the more appropriate intervention.