Mediation - When It Doesn’t Work

Mediation is a voluntary and confidential process, in which an impartial third party trained mediator helps disputing parties reach a mutually agreeable settlement. 

In my opinion, if mediation is to work, both parties need to be able to negotiate and present their position.  I rarely find that divorcing couples can sit in the same room and work out a solution.  If they could, they’d probably still be married.  But there are times when a mediation setting doesn’t work.

Here is an example of a situation where mediation did not work:

Mike and Susan have been married for 15 years. He works at a large software company in the city. They have two children, six and nine years old. Susan has not worked outside the home since their youngest daughter was born. She loves being at home with the children and doesn’t miss the long hours when she worked as a software engineer. Mike works 80 hours a week either at home, traveling, or in the office. They have become strangers in the same house. He thinks if he spends money on the family or buys a new toy everything will be fine.

Susan wants a family life and a divorce. She has tried to get Mike to go to marriage counseling – that lasted for 2 sessions and then he walked out. Mike is angry that Susan wants a divorce and he just wants to get this over with as quickly as possible. He thinks she can go back to work and start earning a lot of money again. He wants to spend time with his children and is asking for joint custody – during separation, Mike has been spending a lot of time with the children and finds he enjoys the connection. He has adjusted his work schedule and taken a new job that doesn’t require as much travel.

Mike has always handled the finances. Each month he enters all their transactions into Microsoft Money. He knows where the money has gone each month. They have never been successful as a married couple creating a budget and following it. Susan spends money freely. She wants to pursue a career in teaching art to high school children and wants to go back to school to get a teaching degree. She has enrolled in a community college to get credits for a program that is being taught at the local university.

Mike wants to go to mediation. He looked on the Internet and found the name of a local mediator. Mike believes that a mediator will help them to save money and not have their net worth eroded by “bottom-fishing attorneys.” They go to the first session and the ground rules are set by the mediator. Susan is nervous as Mike presents their finances. He talks for an hour about their assets, liabilities, date of separation, their spending, and how he sees the settlement. Susan listens and is oftentimes tearful and then angry. She has a hard time presenting her point of view when Jason is in the room. At one point, the mediator asks to meet with each of them individually. Susan doesn’t like the mediator; she feels he is siding with Mike.

Each of them are given homework by the mediator and they agree to meet in another two weeks. They will discuss parenting issues at the next mediation and each of their proposed budgets during separation. Mike has moved out of the family home and is living in a two bedroom apartment across town.

Susan doesn’t know where to begin. She is overwhelmed with the pages of budget spreadsheets prepared by Mike. This is how he manages money, not her. She has never agreed with Mike about how money should be spent and doesn’t feel he understands how much money it takes to manage a family. She is tired of having to justify her spending.

Two weeks pass and they have a second mediation meeting. Mike has his budget prepared and also one for Susan. He feels he understands how much money comes in and how it should be spent. He has $100/month for Susan under her personal expenses. That doesn’t begin to cover her expenses. She gets her hair and nails done monthly, works out with a trainer, and has a weekly bridge group that meets. Susan feels like Mike is dictating her life once again. That is why she wants a divorce. Mike gets angry in the session and says to the mediator, “See what I have to put up with?”

You can see where this mediation is going and not going. In my opinion, Mike and Susan need to be separated. They each need their own advocate in this dissolution process. Susan needs to see a financial planner, and preferably one that is a Certified Divorce Financial Analyst who will help her to deal with the financial issues starting with an analysis of historical spending for the whole family. She then needs to work on a detailed temporary budget and understand where her money is going and why. When she comes to see me, I give her a small 3 ring binder and tell her I want her to write down every dollar she spends – cash, credit card, and check – and mark where the money is spent and for whom. It will take time and training for Susan to become accustomed to tracking her spending. This is something only she can do. After a month, Susan is ready to send Mike her proposed temporary budget with detailed footnotes so he understands where and why the money is being spent. Each of them has some discretionary funds which I call a “don’t ask” account.

Susan and Mike have since discontinued with the mediator and are back with separate attorneys. They were not ready to be in the same room trying to negotiate these financial issues. The emotions were too strong for them to communicate effectively and reach a settlement in the same room. They will try mediation again near the end of their dissolution process – this time their attorneys will be with them in separate rooms. Susan has asked that her financial planner also attend. They have prepared spreadsheets analysing both proposals and are prepared to compromise in the next mediation meeting.

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