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Who Needs to be There: Divorce

{5 minutes to read}  In my last blog, I wrote about who needs to be present during a mediation involving construction matters. Now I’ll address who needs to be present in a divorce mediation.

Here’s the quick answer: The divorcing couple. 

Aerial view of 3 empty chairs set for a meeting

Anyone else? Maybe.

Divorcing couples come in all shapes and sizes. Some have been married for 2-4 years with no kids, and insignificant mingling of assets. Some have grandchildren. Many are in between. Some get along well enough that they can be in the same room together (virtually or physically) without too much distress. However, often at least one person will be uncomfortable being in the same “space” with the other spouse. But that discomfort cannot and should not always be avoided.

In a 10-20 year marriage with a few kids, the couple will most likely be dealing with each other in some fashion for the rest of their lives, and having them learn to work through disagreements together may be critical for the entire family. That can be something learned through the mediation process. One question that arises is whether they can do that with only each other and the mediator present.

Especially in the beginning, one or both spouses may feel uncomfortable being by themselves. That in itself does not mean they need another person in the room with them. The mediator can often be the person who creates a safe space where initial hesitations are overcome. But sometimes that’s not the case and another person’s presence may be essential. The typical “other person” in such circumstances is a person’s lawyer. Contrary to popular opinion, a divorce lawyer can often be helpful, as long as they are truly looking to assist in creating a solution and not carving out some advantages for what might be drawn-out litigation. 

Whether a spouse may want someone else present at a mediation needs to be discussed before the mediation takes place. Usually, it will be obvious from a pre-mediation discussion with the spouse and/or their attorney. Needs also may change over time, something that everyone needs to be attuned to.

I usually start a divorce mediation with just the couple present. That’s a good way to figure out the dynamics and draw out emotions that can be critical to know. This requires the mediator to tread a fine line. It is not uncommon for couples to exchange harsh words during a divorce mediation. Sometimes that’s useful in letting off steam and letting the mediator know where sensitive issues lie. This may be essential before discussing the legal nuts and bolts. For example, an affair can certainly create grave hurts that persist, and require some direct attention. While it may not be legally relevant to splitting assets, or even splitting custody, unless the lingering hurt and anger can be expressed, it may be impossible to successfully resolve the legal aspects of the divorce. On the other hand, ongoing recriminations can undermine the ability to address the necessary legal issues that must eventually be resolved.

People want and need some vindication for their feelings and the mediator can provide that. Allowing some venting can reduce tensions later on, and a spouse who has been allowed to vent may feel the mediator is someone who listens and understands them, and they can then proceed to talk about money, kids, health insurance, and whatever else needs discussing. 

But what if that point doesn’t come? Having another person in the room then may be needed to make progress. As noted, typically the other person is a party’s attorney, whose presence can provide the support needed to help a spouse address difficult and stressful issues. Attorneys can actually help reduce tensions, and sometimes a divorce mediation may proceed with some meetings just with the couple, and others with the couple and their counsel.

The presence of an attorney in the room can assist with more than just emotional issues. For many couples, one person knows the finances better than the other (and this does not necessarily fall along the expected gender lines). An attorney may be able to provide support for some financial discussions, but it could also be a family accountant the couple has jointly used and trusts, who understands their finances and can explain certain things clearly and impartially to everyone.

I always encourage couples to talk to each other outside of the mediation. Some do, and some don’t. If they are able to, it almost always helps. A lucky few get to the point where even the mediator is barely needed except perhaps to prepare the formal, written agreement. So who needs to be in the room is different for every couple, it can change over time, and it’s important to keep an eye open for where the need may exist.

What has your experience been in divorce cases as to who can be unhelpful, or perhaps unhelpful, when in the same room with the divorcing couple?

Gary Shaffer Gary Shaffer
Shaffer Mediation

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An honors graduate of Harvard University and the Cardozo Law School of Yeshiva University, where he also served on the Law Review, Gary brings more than 30 years of litigation and negotiation experience to his practice as a mediator. He has successfully negotiated and mediated resolutions in family matters, employment cases, commercial disputes, personal injury cases, and major civil rights matters.

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