Posted by: itneverrainsinseattle | April 30, 2011

Divorce Mediation, and Other Shell Games

I know I’ve commented on the fact that Penny and I have been going through divorce mediation. Let’s talk about how that’s working out for us so far.

To recap: Washington State is one of the many states in the US where it is possible, even with children involved, to divorce without lawyers getting involved. I had learned that mutual friends of ours had gotten a “do-it-yourself divorce”, and they had a kid the same age as our oldest, and Penny and I were amicable enough, so we began to pursue it.

However, before we managed to get very far down that path, Penny suggested that maybe we should pursue having a mediator to facilitate the process. She was concerned that we might miss some things that could make a real difference to our well-being down the line if we didn’t have some guidance, and had hoped that an experienced hand to guide us along the path (and help us to reach agreement where we had differences of opinion) would provide a smoother process and a better outcome for both of us.

I had my concerns, as I have outlined in previous posts. (Take a look at the category labeled “Divorce Mediation” in the list of categories to the side of this window; clicking on that will bring up a few of my earlier entries on the subject.) I know that everybody’s experience with this process will be different. Our experience has been problematic.

The first, most obvious problem with mediation concerns how to find a good mediator in the first place. Finding a good divorce mediator is as difficult as finding a good therapist (assuming, of course, that there are any of either.) Because their relationships with their clientele are confidential, they can’t give you references. You’re not going to find statistics on “successful” outcomes for their clients. There’s no waiting room for you to scan the other customers (patients?) for signs that they feel they are in good hands. There are no published customer surveys.

So you rely upon personal recommendations, if any of your friends or acquaintances are even willing to admit that they saw a divorce mediator (or a therapist, etc.). Failing that (and, in our case, we did not know anybody who had seen a divorce mediator in our county), you search for articles on the subject, comb the internet for clues, and hope the names you come up with will lead to someone who is decent.

I’ve mentioned several times here my concerns that our journey through divorce was in danger of being derailed. Somehow, we’ve always managed to pull back from a potentially awful situation. I believe the secret to our success thus far has been this: Penny and I both want what’s fair. Now, we don’t necessarily always agree on what constitutes fair (as I’ve also noted), but the point is that neither of us is seeking anything beyond something resembling “fair.” We are not seeking retribution, revenge, comeuppance, belittlement, or vindication. Each of us have had our darker moments; I’ve certainly vented a little bit of anger here, for example. But we’ve somehow managed to not allow anger or fear to bait us *too* far away from the path.

…despite the efforts of our mediator.

I don’t think his goal is to derail the process for us, either, but he has nonetheless come close to doing so on several occasions. At first, his bias only revealed itself in subtle ways; word choice in his meeting notes wherein Penny says but I claim. Or something Penny said would be reported straight as fact, where something I said would be reported as “according to Inris…”.

His bias lately has been unabashed. Here are two examples:

On one particular topic, Penny expressed her desire for us to meet somewhere in the range of [a lower number] and [a higher number]. I sent an e-mail to both the mediator and Penny expressing that I would be willing to accommodate [the lower number]. When we met to discuss this topic, the mediator had worked up only one scenario so that we could see its implications — rather than working out multiple scenarios for us to compare — and the scenario he mocked up was the one based upon Penny’s [higher number]. He kept expressing concern for how Penny felt the results would work for her; whether the [higher number] would bring her to her stated requirements, while failing to notice (and outright ignoring, when it was pointed out to him) that the [higher number] would bring me far below my own stated requirements.

In sales psychology, this is the same tactic that is used to influence the mark customer to think in terms of higher numbers. Starting high and letting the customer try to bring you down a little produces a higher result than starting low and trying to bring the customer up from the lower number. The mediator was using the same trick to try to tip the scales in Penny’s favor during the negotiation. This had an ironic backfire: the end result did not ultimately prove to be all that beneficial to Penny, but it proved outrageously harmful to me. Had the mediator provided multiple scenarios, we might have been able to make solid comparisons based upon well thought out numbers. Instead, in the end, the entire approach that the mediator had suggested was ultimately scrapped. By Penny herself.

In another example of blatant bias, the mediator tried during one session to insist on a double standard; literally, that Penny’s [something] should be calculated using one method, while mine should be calculated using a completely different method. At this point, I was ready to fire the mediator. I very calmly said that I did not see this approach as being equitable. The mediator asked me to explain. I centered myself, and slowly connected all of the dots in a chain of arguments that laid out very clearly why one method or the other should be chosen and then applied to both of us. Here, again, Penny’s desire to be fair rather than vindictive or selfish came into play: she spoke up and said she agreed with me. The mediator backed down. Had he not done so (or had Penny insisted that yes, we should use a double standard), I’d have fired the mediator and stuck with a lawyer from that point on.

As it was, when the mediator typed up his notes, he still included the double-standard. I e-mailed that Penny and I remained in agreement that we would use one method in particular for both of us, and Penny again reaffirmed this.

In both these and other cases, the mediator was clearly attempting to tip the scales in Penny’s favor. Truth be told, I can’t think of a single time the mediator pointed out a scenario or a solution that would have led to some benefit to me. That doesn’t mean that every suggestion he made was at my expense; far from it. Many, and perhaps most, of the observations and suggestions he offered were neutral with regard to the balance between Penny and me. But just because a cashier rings up *most* of your purchases correctly, that doesn’t make you feel any less cheated when you notice more than a couple of items being rung up with the cashier’s finger on the scale.

“But Inris,” I hear you yell, “if that’s the case, why haven’t you fired this mediator?”

And the answer is: because we’re very close to the final agreement, and in the end, the agreement is what Penny and I agree to. It is not what this guy proposes. The overwhelming bias wasn’t blatant until the very end; had it been more obvious at first, we (I) might have taken a different tack earlier.

I think we have overpaid, yes. I think he very nearly led us to blowing up a few mines in the minefield, but we managed to avoid them. We’re pretty much done. Oh, and I do have a lawyer who will review the documents as my advocate before we bring them to the court.

I suppose our situation with this mediator is the same as the situation with my marriage to Penny. Had we known at the beginning how this would have gone, we would have made other choices. But once you’re in it, you keep your eyes on the prize, and hope you make it successfully to where you want to go. It’s hard to know when it’s time to cut off one approach and try another. Penny and I have survived a broken marriage. There remains reason to believe we will survive this broken divorce process.

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Responses

  1. I don’t know how you put up with this “mediator” as long as you did. I would have refused to continue with this guy after the first example of bias. Instead of helping you both to come to agreement on issues (which always involves a range of options as you noted), he’s clearly siding with Penny for reasons that would make me suspicious. He wouldn’t be the first out there to prey upon a woman at a time of deep emotional turmoil.

    I’ve advised you in the past to keep Sir Galahad on the side lines. If you weren’t so late into the process and so close to settlement, I would advise you to let him out long enough to find a better mediator so that Penny wouldn’t become a victim. Instead, you both seem to have enough feeling for each other despite the divorce that you can still act in concert for mutual defense. This is a good sign. As long as Penny doesn’t get frightened about her future, you will make it through this – bad mediators and all.

  2. i am not a fan of alternative dispute resolution in most things. i know we’re all supposed to want to lessen the burden on the judiciary and all that, but quite honestly, i’ve never run across a mediator in an ADR situation who doesn’t come in without a highly structured set of conceptions that automatically work against one side or the other. example: in employment discrimination settings, a lot of employers mandate arbitration. who hires the mediators? employers. there ya go.

    this, i think, is a hundred times worse. i picture mediation in louisiana, for example, and i picture a man never receiving custody of the children because the prevailing attitude down there is that kids are best off with mama. sounds like your mediator is hellbent on “protecting” penny, and thinks that you’ll be ok no matter what happens. the law, and the courts, are designed to smooth out bias as much as humanly possible. judges who rule based on bias can be removed from the bench. there’s no real accountability for mediators.

    i’m sorry you have to deal with this. it sounds like you’re managing as best as you can, despite the thumb on the scale – good on you for that.

  3. i don’t know that anyone is really capable of being objective when they’re involved in a divorce. even a supposedly disinterested third party.

    there were so many people with opinions about how the wasbund and i should split our property. a lot of them thought that i should have put the screws to him, that i should have demanded that he take responsibility for more debt. (our lack of assets was laughable.)

    i did have to be rather aggressive to secure the house and my right to retain it, and i also made a few concessions to achieve it. no one in my life liked that.

    in the end, though, what was fair and made sense between he and i, even after ceasing to be a “we”, wasn’t translatable to anyone else.

    i’m quite happy with how things turned out. i know that he has expressed some displeasure at times, but i think that has more to do with his natural suspicion that since i proposed the division and wrote the agreement, i took advantage somehow.

  4. Ugh. This sounds like a heinous process and your patience level must be way higher than mine because I don’t think I could have stood it for that long. But, given you are thisclose, I don’t blame you for sticking it out. I hope the end result is fairness and you two can officially end your marriage as friends (relatively speaking) and move forward with your lives separately, but united enough for the kids. All seems to be true, give or take a few arguments (warranted!). you are SO CLOSE! Almost to the finish line…

  5. Wow. But kudos to both you and Penny for keeping the fairness intac0t, despite this mediator’s blatant bias.

    Getting closer all the time!

  6. Yuk – you made my skin crawl with your description of your mediator. I know you’re close but I caution you that this is the time that I suspect many people give-in on a decision because they want to be done, it’s the last decision. Or in your case, the last time you’ll have to meet with this obnoxious mediator. As much as you want to be done, don’t be swayed into something you don’t agree with.

    I know here in CO there’s a timetable to get to an agreement and if there’s no agreement by a certain date, then you start moving to a court hearing (and more legal fees to prepared for that). That does add a certain impetus to get things resolved but again, don’t let yourself feel pressured when it’s not in your best interests.

    Don’t know if you’re in this situation but an alternative for something that you and Penny can’t agree how to be split between you, might be to set it aside for the children.

    Stay strong, stay calm and breathe … you’ll get there.

  7. So sorry that you are going through this. I wish I could say something more supportive, but at least you see the light at the end of the tunnel. I’m rooting for you. (Thankfully, Penny is fair!)

    Big hugs!

  8. I’m glad Penny hasn’t let the oh-so-neutral mediator railroad the both of you into something neither of you really wants. Surely there’s some sort of review site for these people – if there’s not, there should be.

  9. I’m sorry you’re going thruogh this. I don’t know how you could deal with a mediator like that. I’m no man, I’ve never been married or divorced – but I’ve seen enough of it happen and for some reason, the lawyer/mediator or whoever is involved always swings towards the woman. I’m not sure why. I’m glad this isn’t entirely the case with you. At least, from what I understand. I’m glad that you and Penny are going to come to an agreement and not just accept whatever this guy proposes. I’ve seen it happen too many times, couples agree with whatever the mediator proposes and they realize in the end that’s not what they really wanted – even though they thought the guy/girl was right… I wish you well.

  10. I am sorry that you had such a terrible experience with your mediator. Unfortunately, mediation is largely unregulated. The standards and statutes that do address mediation, do not go far enough to help the uninformed consumer about professionalism within the industry. Further, there are many different styles of practice, but the public has not been well-informed. But this is not my blog, so I don’t feel free to go on endlessly about this. One website, http://www.mediate.com, contains numerous articles on mediation. If your readers search terms such as “mediation styles,” “facilitative,” “transformative,” and “evaluative,” they will start to understand just how much there is to know and understand about the subject.

    As an attorney mediator myself, I do wish to let you and your readers know that the majority of attorney mediators who are practicing today have had little more than a 35 to 40-hour training in “interest-based” negotiation. This is woefully insufficient on its own to prepare one for practicing as a mediator, yet many who have taken these courses claim to be “certified” mediators.

    There are, however, those of us who have spent endless hours in intensive mediation training, including observing and co-mediating many cases, before we hang out our shingle as mediators. Those of us who do this also continue this education and participate in peer consult groups in order to insure that our mediative skills remain flexible and at their peak. Recognizing mediation as a client-centered process, we are ever mindful that, at any moment, we might experience less than neutral feelings or thoughts. Our skills must be sharp enough and flexible enough so that we can redirect such responses in a way that insures the parties’ ability to make their own *fully informed* decisions.

    Do not give up on mediation simply because there are some mediators who are not sufficiently skilled in the process. There are many very good mediators out there.

    • Hi, Rina.

      Interestingly, I’ve received a few posts that were clearly ads for some divorce-related consulting firm (often based in California, but the readers of this blog are located all over the world); this is the first time I’ve received such a thoughtful post by someone who obviously has skin in the game.

      Frankly, the *idea* of mediation is a good one. But as with finding a good therapist, or a good knee surgeon, or a good oncologist, by the time someone starts looking for that kind of help, the need is pressing and the resources for choosing wisely are hard to come by.

      I’d like to continue this conversation in a future post, if you’re game. In particular, I’d like to pursue the thread of how one finds “the good ones.”

      Are you game?

  11. I’m sorry for replying so late! I did not receive this message by email; I just happened to come across it this morning.

    This is a very important topic. If there is a way to insure that I am aware of your posts so that my responses are more timely, I will be happy to continue this conversation.


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