In my last blog, I wrote about how a mediation can begin if one spouse isn’t quite as prepared to divorce as the other party. Now, I would like to address what happens when those feelings do not diminish as the mediation progresses.
The practical effect in a mediation when one party is reluctant to divorce can be that the reluctant party continually expresses blame and fault against the other party. They may say things like “I didn’t want this, so why should I have to agree to…” It can also have a much more tangible and profoundly negative effect on the process, such as:
When clients express anger and blame, it is most often because they need to say it and even more importantly, need to have it acknowledged. Over time, that party can feel that he/she has been heard and can come to accept that it is now time to move on.
If not, and such comments are preventing the parties from reaching an agreement, then the mediator can:
It is much more problematic when the reluctant party intentionally or unintentionally derails the mediation. I say unintentionally because often the behavior is passive and may not even be recognized by the reluctant party. The mediator can then bring it to their attention either in a caucus or with both parties present, depending on which would be better received.
If that doesn’t work or if the non-cooperative behavior escalates, mediation may not be an appropriate resolution for that couple.
I had a mediation which continued for several years. It was very difficult in the beginning because the husband felt very strongly about remaining married even though they had been living separately before the mediation began. The parties returned sporadically, sometimes having a year pass in between meetings. Ultimately, the husband did come to accept the end of the marriage.
Because this mediation was prior to no fault divorce having been adopted in New York State, the wife had no option to litigate because she had no grounds for divorce. She acknowledged that she had no choice but to let the husband come to terms with the divorce in his own time.
The agreement they reached worked for them and their children, and even though it took longer than the wife wanted, she recognized that having the husband reach this point on his own terms was a better outcome than forcing him to adapt to her timetable.
Are you and your spouse on the same timetable for divorce?
Social Media Comments
I enjoyed your message Clare. A point of acceptance to proceed in good faith in mediation is the possibility of Decree of Legal Separation instead of Decree of Dissolution of Marriage. It can be changed by either party in Colorado after the court has issued the Decree. There is no defense but the Legal Separation status remains until either party motions the court for divorce.
Catherine Schulteis