Conflict Concerns

I'm concerned that I won't be able to stand up for myself if there is a lot of arguing. Will the mediator be able to make sure that I am heard?

The mediator sets the tone for the negotiations and actively intercedes to discourage intimidation, threats or bottom-lining. It is up to the mediator to try to provide a "safe place" for all the parties to be heard. 

If you believe that your situation might helped by additional safeguards, you may wish to consider one of the following client-centered mediation options: Collaborative Mediation, for individuals who would like to have the support of an non-adversarial attorney when making decisions, and High Conflict Co-Mediation, for conflicts involving people with high conflict personalities and relationships, as well as for situations involving “high stakes” issues such as relocation or complex assets.

I am too angry with my ex and do not want to mediate face-to-face. Can we stay in separate rooms and mediate?

Our clients may choose one of several mediation models to address their particular needs.  If you feel strongly about staying in separate rooms during the mediation process, the style of mediation often referred to as “shuttle” or “caucus” mediation is available. 

Consider the advantages and disadvantages of shuttle vs. face-to-face mediation with care:

• Parties mediating face-to-face have an opportunity to gain some skill and insight into communicating and problem-solving cooperatively and are better equipped for handling difficult situations in the future. Working together in the same room also provides parties with an opportunity to clarify misunderstandings, offer heartfelt apologies and brainstorm solutions.
• In shuttle mediation, communication is indirect. The mediator, who lacks familiarity with the details and history of the parties’ circumstances, is responsible for conveying messages between them. This indirect communication is inefficient and often generates feelings of distrust—for the mediator and for the other party.

Sometimes, however, there is so much hostility between the parties or one party has a high- conflict personality, and meeting together is inadvisable.  In these instances, it may be more appropriate and more effective for the parties to engage in "shuttle mediation." 

If you believe that you cannot engage in reasonable discussions with the other party/parties, please read our section, High Conflict Co-Mediation, which describes our mediation option for people with high conflict personalities, relationships, and issues.

Can I mediate if my spouse is lying about his finances?

Suspicion between spouses and partners is very common at the beginning of a divorce or separation. This suspicion often comes about because one spouse has maintained control over the couple’s finances and the other spouse lacks information about sources of income and expenses—or doesn’t understand how to read financial documents. 

Fortunately, the reality is that there are relatively few incidents involving intentionally concealed assets. But even when they are, mediation can be just as effective as litigation for bringing this to light.

As Sam Margulies, Ph.D., one of the most experienced and respected divorce mediators in this country, explains:

“It is easy to trace most assets through a paper trail because very little income arrives in the form of cash. Those who are in cash businesses, such as restaurant owners and small retailers, may have access to significant amounts of cash. But . . . in order to hide cash from your spouse, you also have to hide it from the government. The successful hiding of assets requires tax evasion . . . (In such circumstance, it is more likely that both spouses are) aware that a stash may be hidden away in a safe deposit box. Man's Guide to a Civilized Divorce: How to Divorce with Grace, a Little Class, and a Lot of Common Sense

If one spouse believes that the other spouse is not being forthcoming with financial information, the mediator can help the parties come up with ways to ensure that the information is reliable. One way to accomplish this is to use the services of expert accounts, appraisers and actuaries who will help identify the assets and provide needed valuations.    

See also Transforming Conflict’s mediation models: Collaborative Mediation and High Conflict Co-Mediation.

How does the mediator get the parties to agree?

A good mediator is skilled at acknowledging, active listening, re-framing, questioning and identifying common ground. She will ask probing questions to encourage parties to consider new perspectives, develop empathy for the "other side," and re-examine their own motivations, defenses and fears.

Will the mediator try to persuade one of us to accept a particular settlement?

Absolutely not! Although the mediator helps the parties to evaluate their options, it would be improper to indicate a preference for any particular solution. The parties' ability to craft their own agreements without coercion from a third party is fundamental to mediation.

How do you ensure that an agreement is fair?

Of course, none of us want an unfair outcome when our legal rights and personal interests are at stake. But "fair" means different things to different people. A mediator should not try to impose his or her idea of a "fair" outcome on the parties. The role is to ensure that the mediation process is fair – that each party feels that he or she has been heard and supported and that each party has had sufficient opportunity to be fully informed.