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Diane L. Danois, J.D. Headshot

Lessons Learned From Failed Divorce Mediation

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As the new year begins, I reflect on a failed mediation, wondering what I could have done differently to prevent the unfortunate impasse. Was there something I missed? Or, was this particular couple predestined to litigate their divorce? I retraced the steps from our initial meeting until the moment it became abundantly clear that our meetings were becoming fruitless, and worse, serving only to frustrate the progress.

Rewind the clock to January 2013: a handsome couple walks into my office, smiling and proclaiming their desire to amicably go their separate ways. They floated above those "other people who divorce," trying to convince me that they would be agreeable on most issues. "We won't be fighting over the kids... he's fantastic with them." "She's not interested in material things... we're just going to split most of our stuff down the middle." "He's an amazing father." "She's an awesome mother." It was a love fest, for sure, and I was (naively) anticipating a relatively stress-free mediation.

We reviewed the basics of the process. We talked freely about the marriage and the reasons for the separation. It was clear that though both were willing to participate in the mediation, that only one had really taken the lead in the divorce. Not so atypical. I wasn't alarmed. At the end of our first meeting, I gave my standard speech, including the cautionary part about not discussing any issues with family and friends (a money pot for litigation and a death knell in mediations). For all their well-meaning advice, seeking outside opinions only serves to slow down the process and almost always impacts negatively. "No worries," I was told by each new client, "We are very private people."

Fast forward to February. We've exchanged documents for Mandatory Disclosure, prepared Financial Affidavits, talked about Parenting Plans and started sketching out the basics of the Marital Settlement Agreement. One of the parties was eager to meet with me, providing feedback and asking questions, while the other party was beginning to drift, taking a more passive role in the process. Ironically, it was the drifter, who had originally contacted me to initiate the divorce.

In March, I learned that my drifter was beginning to date other people, creating a palpable awkwardness between my couple. Our previously open discussions morphed quickly into private caucuses, creating tension and suspicion between the two. As the months wore on, the communications between my handsome couple began to strain, deteriorating from face-to-face conversations to text message marathons to nastygrams.

Then, it happened. One of the parties "lawyered-up." But, not the lawyering that typically accompanies many mediations, namely, the kind of collaborative lawyering that yields a successful mediated divorce. No, instead, one of the parties started getting "free advice" from a patent attorney "friend," who had never represented a client in a family law case, had never stepped foot inside of a courtroom, and had never even been divorced. This "free advice" was polluting my mediation efforts, filling my client's head with notions of entitlements, legal rights, and how to financially check-out of the marriage. And here's the worst part: the patent attorney was "dating" my client. Ugh.

We were approaching the summer, and my handsome couple wanted to take a break. The kids were out of school, and they were tired. As was customary, I took my cues from them, and told them to recontact me when they were ready to reengage the discussions.

During the hiatus, things went from bad to worse. Because they were so confident they wouldn't hurt one another at the beginning, they never separated their finances. Week by week, the marital assets began to dissipate. Fancy vacations (taken separately), expensive jewelry, and other luxuries were run up on credit cards and withdrawn from bank accounts. Good parenting flew out the window as the children were used as pawns and messengers. And to further fuel the fire, the previous "let's split everything down the middle," had been replaced with arguments over what was or was not a marital asset, and the all-time favorite, "You need to give me more spousal support."

In the fall, I was recontacted by my still-married handsome couple, who wanted to revisit the Agreement we had been drafting, in the hopes that they could find some common ground. Though we had already revised, re-revised, and re-re-revised the documents multiple times, I agreed to give it one more try. My caveat, however, was that if we couldn't arrive at an agreement this go-around, I would reluctantly declare the impasse and provide them each with recommendations for collaborative attorneys. They both agreed.

Alas, our efforts were thwarted by unrealistic demands, irrational positions, and what I suspected was a continued effort by one party to lawyer-up on the side. We were in a circular motion, making no progress. I wished them both well, and concluded our final session.

Lessons Learned:

Lesson #1: Encourage the parties to agree to physically separate themselves financially immediately, even if it means reconciling inequities at the end of the process. Close joint bank accounts. Close joint credit cards. Do whatever it takes to reduce the opportunities for one to dissipate marital assets or take advantage of the other during the mediation process.
Lesson #2: Devise a temporary Parenting Plan to outline and govern interim parental responsibilities.
Lesson #3: Establish (and stick to) a strict schedule, so as not to allow too much time to lapse between formal meetings.
Lesson #4: Draft a "Mediation Rules Agreement" (or something similar) outlining some of the basic expectations from the parties during the process. While this may seem silly, and certainly has no binding effect, it may reinforce and highlight potential pitfalls.
Lesson #5: Be wary of anything that looks too good to be true. The truth is that divorce -- even between two rational adults -- is an extremely difficult process.