Mediation is gaining traction in the world of divorce law. Its growing popularity is understandable, given that it presents divorcing couples with an alternative to the traditional litigated divorce (almost always acrimonious, adversarial, expensive and unpleasant). Mediation affords divorcing couples the opportunity, instead, to “consciously uncouple” (a term popularised by Gwyneth Paltrow in her divorce from Chris Martin in 2014).
There is a lot to be said for the divorce mediation process, but it’s important to note that it’s not an appropriate process in every divorce and not all mediators are created equal.
If mediation is something you’re interested in exploring, there are a few things you should know and understand about it in advance. Set out below are some guidelines to help you navigate the process.
Reality check 1: both parties must want to mediate
First, both parties must be up for it. While you may desperately want to resolve your divorce quietly, amicably and without armies of lawyers getting involved on both sides, your spouse may feel differently. If you and your spouse aren’t on the same page about how you want to approach your divorce, then mediation may not be appropriate (at least not at this stage).
Mediation, at its core, is a facilitated negotiation — which means both sides must be ready and prepared to reach a deal. Parties have to let go of the need to “win” and be prepared for the possibility of not getting everything they each want in the divorce settlement. The objective cannot be to punish each other or exact revenge or teach each other a lesson. Instead, both parties must be prepared to listen, engage, be accountable and play an active role in generating settlement alternatives.
A successful mediation also requires both parties to agree and be prepared voluntarily and timeously to exchange information relevant to the settlement negotiations. At a minimum this will usually mean must be prepared and willing to make comprehensive financial disclosure.
Take away: both parties must be ready and willing to negotiate and to share relevant information.
Reflection: are you both on the same page about wanting to mediate?
Reality check 2: timing is everything
Divorce is not just about attending to the practical aspects of unwinding a marriage. It is also about recalibrating the emotional aspects of the marital relationship — mourning the demise of a previously shared joint vision, processing difficult thoughts and feelings and visualising a new and different future you hadn’t planned on.
The practical and emotional aspects of a divorce are parallel processes, and they inevitably have an impact upon each other. In my experience, the further down the road a couple is with processing the emotional aspects of their divorce, the more likely they are to be ready and willing to negotiate the practical aspects.
Take away: both parties must be in the right head space to be able to engage reasonably to mediate. They may need to seek some form of therapy or counselling first.
Reflection: if you and your spouse are looking down the barrel of a divorce, how are you doing with the emotional processing part of that decision? Is one of you perhaps a bit further along the line with this than the other? (Generally this is the case: usually one party sees a divorce coming before the other and can start mourning the marriage sooner, and the other party has to play catch-up.)
If either one of you is still grappling with the emotional trauma of a pending divorce, it’s worth giving some thought to how best this part of the process can be facilitated — so that both of you are at the point where you are ready to mediate. Resorting to litigation out of impatience might seem a valid choice, but you may be better off just giving it a little time to get you to a place where you are both mediation-ready.
Reality check 3: the mediator must be someone in whom you both have confidence
The success of your mediation experience will be greatly influenced by your choice of mediator or mediators. It is critically important to the success of the process that you and your spouse are comfortable with whomever you decide to appoint. It’s also key that the mediator you choose has the appropriate skills.
Take away: your mediator is important. Be discerning.
Reflection: how should you choose your mediator?
Referrals from your respective independent attorneys may be a good place to start. Word of mouth referrals from people you know — who have gone through the process and can testify to the competence of a particular mediator — are also a good option. Referrals from a therapist or counsellor you trust are another possible source. If you are going to look for your mediator by trawling the web, make sure you interrogate their credentials thoroughly.
The industry is largely unregulated and there are no formal barriers to entry. You should also give some thought to which aspects of your divorce are likely to be the most contentious. Your mediator should be someone strong in those areas. For example, if you anticipate difficulties negotiating an age-appropriate parenting plan for your children, you may want to ensure your mediator is someone with experience in family therapy and parenting plans. On the other hand, if your divorce involves complex financial structures and asset valuations, you will want a mediator who is comfortable in that arena. If your divorce is likely to be tricky on all fronts, you either need a very experienced mediator or a multidisciplinary approach.
The thing to remember about mediation is that the process demands the parties’ active engagement — from the time the decision to mediate is taken, until the final settlement is signed by both parties. This is what makes mediation hard and powerful. Mediation offers divorcing parties the opportunity proactively to participate in crafting their own divorce settlement: the opportunity to write their own divorce story, so to speak. By contrast, in litigated divorces, the parties’ largely abdicate responsibility for the legal process to their respective legal teams, and the terms of their divorce will be prescribed and imposed on them by a judge in court. We’re all too familiar with what that divorce story looks like.
Key takeaway: mediation is a powerful process enabling parties to take charge of, and responsibility for, their own divorce stories. But it’s not for the fainthearted.
— Hannah Wilson is co-founder of Simplifi Law, specialising in legal advice, early intervention and conflict resolution
