My Husband or Wife Won’t Mediate….Help!

Monday, April 16, 2012

It takes two people to make the decision to marry, but only one spouse to make the decision to divorce. That is reality. One spouse wants to be separated. One spouse does not. This is the case most of the time. Which spouse wants to mediate and which spouse does not? What is the mindset of two people during this heart-wrenching period?

The spouse who desires a separation is often emotionally light years ahead of the spouse who does not. The spouse who desires the separation has made a decision. The one who doesn’t has a decision made for him or her. The spouse who desires the separation has formulated some sort of plan at least in his or her own mind. The one who doesn’t feels unprepared. Blind-sided. Ambushed. Terrified. Vengeful. The spouse who desires the separation feels ready to move on and is usually more calm. The one who doesn’t is often emotionally devastated and upset.

So which spouse wants to mediate? The spouse who desires a separation, of course. It is easier to be rational when you are in this slightly less compromised position.

What are the best ways to convince the reluctant spouse to attend to find a divorce mediator in Maryland?

Give him/her time to adjust if possible. Jumping into the “how-to” of separation and divorce when the reluctant spouse is processing the information works against you. First of all, he or she may not agree to anything the other wants ‘just because’. He or she may feel the ultimate decision was made for them and now want to be the decider. It may be more productive to allow the other to decompress, if possible under the circumstances. Sometimes attending marriage counseling as marriage closure counseling might help with the transition.

Stressing the needs of the children is a good way to get your spouse’s attention to turn to divorce or custody mediation. Let your spouse know that in Maryland, almost all custody and visitation disputes are ordered to mediation. Hopefully the reluctant spouse will rise instinctively to the protection of his or her children. That reluctant spouse may try mediation with the right incentive. Ask the pediatrician to recommend mediation. Ask your marriage counselor to recommend mediation. Appeal to your Husband or Wife’s more rational close friends or relatives.

If the spouse still won’t go to a family law mediation seminar, ask the reluctant spouse’s parent or sibling to attend the seminar and report back. If you go alone, bring home a packet of information for the reluctant spouse. Trying mediation is the key- a great mediator will keep your spouse in the mediation process from the start.

Harp on the financial incentive of mediation. If there are no children-related issues, then appeal to the reluctant’s spouse’s financial incentives. Contact or interview a few attorneys to find out what their retainer is. Speak to friends or relatives who have been through the hell of divorce litigation or attorney-led negotiations and ask them frankly, “How much was the retainer and how much did it cost in total?” These are two different questions. If you can pry, ask them who paid all the fees? One or both of them? When you speak to your reluctant spouse, relating this specific information may be very persuasive when seeking to mediate. Where talk doesn’t work, send an informational email, “Dear Spouse: I just wanted you to know I contacted 4 attorneys, and the requested retainers ranged from $2,500.00-$5,000.00. All the attorneys I spoke to informed me that that total cost of the case might be as much as 2-5 TIMES the retainer cost. I spoke to Sue Jones who just went through a divorce, and she told me that their total legal fees were more than $25,000.00, and that she paid 25% and that Jerry paid 75%. Please at least consider attending one session of mediation before we go that way? From, Your Spouse.”

Frame the discussion as a discussion. “I have been researching and our options are: letting our lawyers negotiate the settlement, letting our lawyers fight it out in court, or trying to directly negotiate a settlement with each other in mediation. What do you think?” This sounds different than “I want…” conversations. Of course, if he or she asks what you think, then, by all means say “I think we can do this for less money and more peacefully through mediation.” Avoid “I want” and try present the option of mediation as a choice.

Even where your spouse refuses to mediate from the start, mediation remains a viable option throughout the divorce process. Whereas attorneys do generally attempt to settle cases during the course of contentious litigation, the mediator is removed from the litigation, and therefore has a better chance at successful settlement. Sometimes it takes the reluctant spouse’s ugly foray into litigation to change his or her mind but by then, he or she feels it is too late. IT IS NOT TOO LATE. You can mediate a settlment at any stage of the process. Keep offering mediation to your spouse throughout your litigation if this is where you end up.

Sometimes, as a last resort, initially hiring an attorney for the sole purpose of sending your spouse a letter stating: “Dear Mr. Spouse: I represent your wife, Mrs. Spouse relating to the likely dissolution of your marriage. Mrs. Spouse would like to mediate the divorce issues which is often far less costly then litigation. If you are interested in considering mediation, I recommend the mediators listed below. ” By doing this, you are telling your spouse that you mean business, while simultaneously making a peace offering.

So if your Husband won’t mediate or if your Wife won’t mediate, don’t give up. What process you pursue may set the tone for your entire divorce and post-divorce life (if you have children). This is among the very first issues to negotiate- and if you “win” this issue with your spouse, then it will wind up being a “win-win” for both of you, and for your children and bank accounts.

Try divorce medation with Nancy Caplan, Esquire, through Maryland Divorce Mediation and Legal Services. At the very least attend the free seminar to see if it is an option for you and your family. It will cost you nothing and may save you from one another.