It’s rare in my practice for both parties to be in the same frame of mind about getting a divorce. Most often, one person is more prepared for the process and the separation, and the other party may not even have come to terms with the concept that the marriage will come to an end. What can each of them do?
When I used to litigate, you needed grounds for divorce, and if the person who wanted the divorce had no grounds and the other person was hesitant to divorce, then the person who wanted the divorce would either have to stay married or be prepared to make a very generous settlement offer. Now, New York has no-fault grounds for divorce, but the parties need to settle all parenting and financial matters between them before a divorce judgment will issue on the grounds of irretrievable breakdown of the marriage.
Similarly, in mediation, you can’t proceed unless both parties agree to the process. That does not mean that I have not seen a client who clearly states from the beginning that he or she doesn’t want the divorce but agrees to mediate because they see the inevitability of divorce and prefer mediation to litigation.
What if your spouse refuses to accept the inevitable? If you haven’t already done so, you can try marriage counseling as long as you are honest in your motives. Sometimes marriage counseling can help the reluctant party recognize that the marriage is over. If that doesn’t help, you can see if your spouse is willing to have a consultation with a mediator even if he or she isn’t fully committed to the process yet. Sometimes, just seeing that you are serious about wanting to end the marriage and are taking steps in that regard helps the other person accept that the marriage is over. Finally, you may just have to be patient and give the other person some time to get to the same point as you, but you should be sure not to give the other person mixed signals even though you are remaining in the marriage.
What if you’re the person who doesn’t want the marriage to end? Again, I would definitely suggest marriage counseling if you haven’t already done so, and again, you need to be honest with your spouse about your motives. If that is not an option, you may benefit from individual counseling to help you understand what is happening and help you act. A divorce coach who is trained in helping a person deal with the process of divorce, be it through litigation, mediation or collaborative practice, could also be of help.
The bottom line is that mediation will take as long as it takes. I often first get a call from one party and then weeks or even months go by before they make the first appointment for a consultation. Then more time passes before they tell me they are ready to mediate. Like all facets of mediation, the timing and pace of mediation sessions are completely up to the parties.