FEAR AND DIVORCE: A FOUR-LETTER TOOL FOR MOVING THE DIVORCE PROCESS FORWARD

Wednesday, June 1st, 2011

by Marion Lee Wasserman

This article has been published in the Family Mediation Quarterly of the Massachusetts Council on Family Mediation, Summer 2011 issue.

Fear and divorce go together.  Pointing this out to divorcing individuals as part of the divorce process can be extremely helpful.  “Fear” is a powerful word.  It puts the truth of the matter, emotionally speaking, on the table — plainly, clearly, non-euphemistically.  When the divorce client I am representing is angry at his or her spouse and feels too hurt to negotiate, or when spouses in divorce mediation are each so convinced of their conflicting positions on an issue that constructive conversation has come to a halt, I often find that this evocative word — FEAR — is a key that can be inserted into the process to move it forward.

Take, for example, Matt, a husband in mediation who is angry at his wife, Jen, because, without prior notice to him, and in violation of a written mediation agreement they signed, she has withdrawn ten thousand dollars from their joint savings account and deposited it into a new, individual account in her name.  Even though there is still a hefty sum in the joint account, and even though the parties agreed at the prior session to eventually divide the joint account fifty-fifty, Matt is hurt and angry because Jen moved a portion of the funds without talking it over first with him.

In this case, I might say to Matt, “You know … everyone going through a divorce is struggling with a set of fears.  Everyone.  It’s part of the territory.”  (Pause.  Matt nods.  I continue.)  “I’m guessing that you have a set of fears about what the divorce will mean.”  (Matt nods some more.)  “And I’m guessing that Jen does, too.”  (I look at Jen.  She is nodding, too.)  “You each have a different set of fears.  But there may also be overlap.  Some fears may be the same for both of you.  You each know what your own fears are.  It may be really helpful to our process if you can each understand more about the other’s fears.”  At this point, I may ask Jen what some of her fears are.  I may then ask Matt about his.  Or I may ask each party to tell us one of the fears he or she thinks the other party has.

In the above example, the conversation about fear leads to greater understanding and empathy between Matt and Jen.  One of Jen’s fears is that she will have trouble functioning on her own after the divorce.  She opened her own bank account in order to have funds available to help her start experiencing what it feels like to act more independently than she has in the past … especially now that she has moved into an apartment of her own.  Matt begins to feel less hurt and angry when he understands Jen’s fears.  Jen, for her part, apologizes for having acted unilaterally in withdrawing joint funds.

Although one might expect divorce clients to want to avoid the subject of fear, I have found that clients find it a relief to discuss fear head-on.  Divorcing spouses are relieved to acknowledge and confront their own forebodings and to acknowledge each other’s as well.  This acknowledgement comes from an authentic place in each individual, and for that reason it is a powerful tool for moving the divorce settlement process forward.

Copyright © 2011 Marion Lee Wasserman.  All rights reserved.

The above article is provided for general informational purposes.  The case facts and client names used in this article are fictional.  This article should not be construed or applied as legal advice or legal opinion or as tax advice or as establishing an attorney-client relationship.

WHY I LOVE DIVORCE MEDIATION

Tuesday, November 2nd, 2010

By Marion Lee Wasserman

Author’s Note:  This article is an excerpt from “How I Found Divorce Mediation and Why I Love It.”   The full article appears in the Fall 2010 issue of the Family Mediation Quarterly (“FMQ”).  The FMQ is available online at www.mcfm.org .

Today my practice is dedicated to family law.  About half of my cases are mediation cases, while the other half are cases where I am legal counsel, helping clients reach a settlement and also reviewing mediated agreements.  Fortunately, I do not have to choose between the two sides of my practice.  My clients make that choice.

Not every client getting divorced chooses mediation, but for those who do, the choice is almost always a wise one.  Here are four reasons why I love doing divorce mediation and why it works so well.

Simplicity

There is a common-sense simplicity to the idea of divorcing spouses sitting down together to discuss their settlement with the assistance of a trained, neutral third party.  This three-way model is the one I use.  In my divorce mediation practice, the three-way meetings are the primary vehicle for achieving settlement.  Because this model is so simple, it is easy to explain to potential clients; and couples usually do a good job of self-selecting — that is, recognizing whether or not this process will be a good fit for them.  Although the parties may have lawyers working with each of them in the background of the mediation process, the primary dialogue in the process is the couple’s own dialogue, at three-way meetings and between meetings, if possible.  The divorce is their divorce.  The dialogue is their dialogue.  The mediator’s humble role –  apart from educating the couple about the legal context of divorce –  is to facilitate the negotiation, to give the couple an assist.  Though the three-way model is a simple one, the mediator’s role is endlessly interesting and challenging.

Flexibility

The spareness of the three-way model makes it easy for the couple to decide, with the mediator’s guidance, whether additional professional assistance is required.  Professionals with special knowledge and skills — for example, financial planners, accountants or child development specialists — can be brought into the process on an as-needed basis. By agreement, the couple can decide whether to work with an outside expert individually or as a couple; and the expert can provide reports and spreadsheets shedding light on complex financial issues.  The expert can attend one or more mediation sessions if this will be helpful and cost-effective.  Decisions about the use of experts grow dynamically out of discussions at the three-way meetings.  The divorce mediation process is never “one size fits all” but is instead an inherently adaptive and flexible process.

Cost-Effectiveness

The three-way model makes for a highly cost-effective process.  This is an unquestionable up-side for the divorcing couple and their children.

In the Middle

The first few times I entered a room as a mediator for a divorcing couple, I had to screw up my courage.  Sitting down at a table with two people going through wrenching, life-changing conflict was scary.  Often, the spouses were angry and hurt and could barely abide being in a room together.  But in a surprisingly short period of time, my trepidation at being in the middle disappeared completely — a tribute to the transformative power of the mediation process, not only for clients but also for mediators themselves.  I began meeting each new couple eagerly, with confidence in the mediation process.  Whatever the couple’s emotional dynamic, I welcomed the opportunity and the privilege of creating a safe space they could enter, where they could work through conflict and get divorced in a cooperative, mindful way.  Now I thoroughly enjoy the special challenges of being in the neutral middle.

Copyright © 2010-2011  Marion Lee Wasserman.  All rights reserved.

MEDIATION BASICS

Saturday, October 23rd, 2010

by Marion Lee Wasserman

An informational article originally prepared by Ms. Wasserman for a workshop presented by her at the Harvard Medical Center of Harvard University.

What is Mediation?

Mediation is a process for settling disputes. The dispute may involve two parties or multiple parties, and the role of the mediator is to act as a neutral third-party guiding the parties to a resolution of their differences.

Why Choose Mediation Rather than Litigation?

Entering into the mediation process is a cooperative step in itself. Sitting down together at the mediation table, the individuals in conflict are making an effort to resolve their conflict cooperatively — to find a solution without escalating the conflict. In family situations, where relationships extend beyond the particular dispute — and, indeed, last a lifetime — mediation helps the parties to the dispute preserve what they can of their relationship. Also, as the mediation progresses, with the mediator’s guidance and encouragement, the parties find a resolution that comes from their own ideas and hard work. The resolution they finally reach is their own. It is not imposed upon them by a court. Mediation is also a cost-effective process, as it encourages dispute resolution and discourages time-consuming, money-consuming dispute escalation.

Are Mediators Specially Trained?

There is currently no state licensing of mediators in Massachusetts. Most mediators take at least a thirty-hour basic training course from one of various training providers. This training enables a mediator to meet one of the key requirements of the state statute governing the confidentiality of communications during mediation. Mediators may also take advanced, specialized training. Ms. Wasserman has taken advanced divorce and family mediation training and has met the certification requirements of the Massachusetts Council on Family Mediation.

How Does the Mediation Process Work?

Mediation sessions follow certain ground-rules that are explained by the mediator in the first session. These ground-rules promote constructive, balanced, respectful discussion between the parties. The parties agree to listen to each other and to disclose to each other all information relevant to the fair resolution of the dispute. The mediator is trained to create a non-judgmental, balanced environment. The mediation process is voluntary and its continuance is voluntary at all times. Agreements reached by the parties are entered into voluntarily.

Copyright © 2002-2011 Marion Lee Wasserman.  All rights reserved.
The above article is provided for general informational purposes. This article is not intended to apply to any specific facts or circumstances and should not be construed or applied as legal advice or legal opinion or as establishing an attorney-client relationship.