Mediation can require a level of participation that some people may find difficult. When the circumstances of a divorce leave someone feeling particularly disempowered, that can affect the person’s ability to participate effectively in the mediation itself. In some situations, someone may become overwhelmed or have difficulty processing what is being discussed or responding in the moment.
A significant imbalance of power between spouses can be part of that dynamic. So can the history of the marriage or other circumstances that affect how someone responds when placed in a difficult negotiation.
When that happens, it doesn’t necessarily mean mediation is the wrong process. It may mean the process needs to be structured differently, and that is something worth considering before the mediation begins.
When Effective Participation Becomes Difficult
The dynamics that led to a divorce don’t disappear once the marriage is ending. A person who has spent years deferring to a spouse may have difficulty asserting themselves during negotiations. Someone who has felt that the other spouse holds all the leverage may approach the divorce expecting to lose before the discussion has even begun.
If you recognize that something about the circumstances of your divorce may make it harder for you to participate in mediation sessions effectively, tell your lawyer. You may already know that certain situations are particularly difficult for you. Or you may only recognize the problem once you understand what mediation will require, or even after the mediation has begun.
For example, your lawyer should know if you need additional time to review information, if being in the same room as your spouse makes it difficult to engage or if there are other aspects of the mediation that may interfere with your ability to participate. Discussing these concerns with your lawyer before mediation allows you to consider how the process can be tailored to help you participate effectively.
How Mediation Can Be Tailored
One of the advantages of mediation is that the process can be tailored to the people involved. That flexibility can matter if the usual structure of a session could make it harder for you to remain engaged. You may need materials several days in advance rather than being asked to review or edit them during a meeting. You and your spouse may be able to work from separate rooms. A session may be shortened or divided rather than requiring you to negotiate for an entire day.
These changes do not eliminate the challenge inherent in every divorce, but they make it possible for you to remain productively involved in the decisions that will shape your life after the divorce.
The same principle applies to selecting a mediator. If you prefer, you can have the opportunity to speak with a prospective mediator and decide whether that person is a good fit. The mediator will influence how the discussions unfold, and that choice should not necessarily be treated as something that belongs solely to the lawyers.
There may also be circumstances in which a divorce coach or mental health professional can provide expertise that a lawyer does not have. With your permission, your lawyer may communicate with that professional when appropriate. The goal is to give you the support you need to participate effectively while remaining in control of decisions about your own case.
What Happens When Mediation Isn’t Working
Clients sometimes assume that if mediation is too difficult, going to court will be easier. That does not necessarily follow.
Litigation places significant demands on you as well. A litigated case may involve depositions, hearings or trial testimony, along with difficult questions about the marriage, finances or other deeply personal matters. If the circumstances of the divorce are affecting your ability to participate, changing forums may not address the underlying issue.
That does not mean mediation is appropriate in every case. Some matters benefit from court involvement and the intervention of a judge, and some move between mediation and litigation before they are resolved.
But if mediation is not working, it is worth understanding why before abandoning it. Sometimes the problem is not the substance of the negotiations but the way the process is being conducted.
You do not have to accept the mediation process exactly as it is presented to you. You can ask how it will work, tell your lawyer what may make participation difficult and have a voice in selecting the mediator. Having those choices does not make you less capable of handling your divorce. It gives you a greater ability to participate in it effectively and on your own terms.