Is Mediation Right for Your Divorce? Not Necessarily. Watch For These Red flags

As a family mediator, I am strong proponent of a facilitated, out-of-court process, but I always advise clients before we start that mediation is not the right choice for everyone. When couples decide to part ways, mediation can help them do so amicably, without resorting to a costly adversarial process, especially when children are involved. At its best, couples CAN reach a settlement while maintaining and even repairing how they communicate. But sometimes mediation may need to be postponed, adjusted, or terminated. It’s important to recognize whether the process is right for you. Watch out for these red flags.

Cases when mediation can be undertaken with accommodations

The Raw Emotions: Sometimes emotions are too overwhelming for successful mediation. If you or your spouse find it challenging to communicate calmly and rationally, it might still be the right process, just not the right time. Consider seeking individual therapy or counseling before attempting mediation, or just put the process on hold until emotions have settled.

Complex Legal or Financial Issues: If your situation is particularly complex, involving extensive assets, investments, or business interests, court can still be avoided by bringing in financial and/or legal professionals to offer advice during the mediation process. 

Custody Battles: When child custody and visitation rights are contested, your mediator can undertake a VOC (voice of child) interviewing process or involve a psychologist, or parenting coordinator to reach resolution.

Cases when mediation may not be appropriate

Mental Health and Addiction Issues: Mediation requires clients to make rational decisions.  It can be difficult to draw the line and say when mental health or substance abuse problems disqualify a person from making those decisions. When capacity is lacking or in doubt, mediation should be delayed until treatment has been received, or switched to court or arbitration so that decision-making is in the hands of a professional.

Hostility: Mediation only works when both parties come to the table with the intention of respectfully reaching a balanced agreement. If you or your spouse is repeatedly hostile, disrespectful, or refusing to listen, either in or outside sessions, then mediation should be discontinued. In my experience, hostile behaviour usually improves when it is not tolerated, and mediation can then resume. 

Lack of Good Faith: Successful mediation requires compromise and a willingness to find common ground. If either party refuses to budge or make concessions along the way, you will need to explore other dispute resolution mechanisms such as arbitration or litigation in which decision-making authority is given over to a professional.

Hidden Assets: If a party is being dishonest about financial disclosures, mediation cannot proceed. An evidence-based, forensic process can uncover the truth and ensure a fair distribution. These unfortunate situations entail a much more drawn out and expensive process.

Safety Concerns: If there's a history of domestic violence or abuse, mediation may not be safe. Safety and well-being should always come first. If you are in fear, consult with police and consider seeking a protective order. In cases of coercive control, a form of abuse in which there is often no physical violence, the police will typically not get involved. The controlled person should see a social worker for psychological support and to protect children, including advocating for slowing down implementation of shared parenting arrangements. Kyra's Law, newly introduced by the Canadian parliament, requires lawyers, mediators and judges to make a concerted effort to protect children in shared custody arrangements with an abusive or potentially abusive parent.  

In summary, family mediation can be an excellent tool for couples who are willing and able to seek an amicable divorce, but in some cases, it would require accommodations, or perhaps not be the right choice for you. Keep in mind that every divorce is unique, and the most suitable approach needs to align with your situation and needs.

ABOUT THE AUTHOR

Mike MacConnell, founder of Reflective Mediation, is an accredited family mediator, conflict coach, educator and author. He is the highest-ranked mediator on Google in the greater Toronto area, with over 180 5-star reviews. To book your free consultation click here.

Stop Focusing on What’s Wrong; Start Looking at What's Right How to Get Along Better? Uncover the Positive Needs

Conflict is a natural part of human interaction, but the way we handle it often determines whether it escalates into a destructive cycle or becomes an opportunity for growth. In many conflicts, individuals tend to focus on the negative aspects of the other person's behavior, often leading to misunderstandings, hurt feelings, and further animosity. What if there was a different way to approach conflict resolution—one that seeks to understand the positive motivations behind dysfunctional behavior? In this article, we'll explore the idea of looking for positive, health-seeking motives behind conflicts and how it can pave the way for more effective and harmonious resolutions.

It's a common tendency to become experts in pinpointing each other's flaws and shortcomings during conflict. When we disapprove of someone’s dysfunctional or harmful behaviour, our natural reaction is to assume negative intentions behind those actions. However, by shifting our perspective, we can begin to unravel deeper motives that drive these actions.

Consider a situation where a teenager rebels and becomes disrespectful towards adults. This triggers reactions that are normally confrontational. The adult gets upset, assuming conflict and disrespect to have been the motive.  Let’s take a step back and consider the healthy intentions behind it.

Rather than jumping to conclusions about malicious intent, it's worth delving deeper into the reasons behind someone's actions. Although the behavior created conflict, the underlying drive is more likely a desire for autonomy. The teenager's actions may be stemming from a healthy need to assert independence and establish their identity.

By recognizing the positive motivation of seeking autonomy, we can now shift the conversation from judgement to curiosity. Instead of simply reprimanding the teenager, a more constructive approach would involve inviting the youth to explore their motives, acknowledging their need for autonomy, while also establishing boundaries that respect both parties' perspectives. 

Identifying positive motivations doesn't mean condoning disruptive behavior. Rather, this approach opens the door to collaborating to find common ground, set boundaries and work toward solutions that address everyone's needs. A difficult conversation now becomes an opportunity for you to point out that just as they have a legitimate need for autonomy (or novelty, or excitement or whatever) you also have legitimate needs that deserves equal respect, perhaps in your case for connection, (or order or peace). When two conflicting parties understand and validate each other's underlying motivations, they can reframe the conversation and work as equals toward a resolution. This not only satisfies more of each person’s needs, it also shifts the relationship toward greater reciprocity.

Romantic couples I work with are often at odds due to differences in communication styles. Instead of casting blame and assuming negative intentions, they can engage in a conversation that explores the health-seeking intentions behind each communication preference. One person finds silence calming, yet may be viewed by their partner as uncaring, while the other’s desire for connection might be interpreted as intrusive and controlling. But the healthier needs for peacefulness and connection are both legitimate. Once this is recognized, they can shift from the unhappy impact to the health-seeking needs and begin working together to find strategies to meet the deeper needs in new ways 

When you make an effort to uncover the positive intentions hidden behind unwanted behaviours , you’re on the way to building empathy, bridging gaps, and creating  solutions that benefit everyone involved. You’re on a journey that builds stronger relationships along the way.

All because you noticed the positive need that motivated the hurtful behaviour.

ABOUT THE AUTHOR

Mike MacConnell, founder of Reflective Mediation, is an accredited family mediator, conflict coach, educator and author. He is the highest-ranked mediator on Google in the greater Toronto area, with over 180 5-star reviews. To book your free consultation click here.

Divorce Out of Court: It May Take More Than a Mediator

Divorce is never a walk in the park. It’s a complex emotional journey that requires careful navigation. This is just as true if you are committed to resolving it out of court. Divorcing couples often utilize a wide range of professionals to ensure a rock-solid, legally valid, and bullet-proof agreement. This blog explores some of the experts you might want to consider on your divorce team.

A Mediator: Mediation can be essential to avoiding courtroom battles. As a neutral facilitator, they help you and your spouse reach agreements on various issues, including child custody, visitation schedules, and property division. They can offer strategic guidance and support throughout the process assisting as you navigate the emotional challenges, manage stress. With their assistance, you can maintain control over the decision-making process and work towards a mutually beneficial resolution.

A Family Lawyer isn’t necessary, contrary to popular belief. You can waive that option, but it isn’t recommended unless trust is very high and issues are very few. The mediator can provide legal information but can’t offer legal advice about your rights and obligations. For advice along the way, and a review of the Separation Agreement at the end, it’s smart to hire an experienced lawyer.

A Divorce Financial Expert can provide invaluable guidance in untangling the complex web of assets, liabilities and support obligations. They can help you understand the long-term financial implications of different settlement options and ensure that the lawyers are basing their advice on a fair division of property.

A Child Specialist can help assess and minimize the impact of the divorce on your children and provide recommendations for parenting schedules that prioritize their best interests. Their expertise can guide you in creating a parenting plan that promotes the healthiest possible environment for your children.

A Real Estate Appraiser is crucial for obtaining an accurate valuation if one party is buying out the other’s share of your home or other properties, thereby ensuring that the division of assets is based on fair and up-to-date valuations.

A Tax Specialist can help you understand the tax consequences of different settlement options, guide you in maximizing tax benefits, and ensure compliance with tax laws during property division and other financial matters.

A Pension Expert can provide guidance on the valuation and division of pensions. They analyze pension benefits, calculate present values, and assist in creating a fair and equitable distribution plan, considering factors such as retirement ages and survivor benefits.

A Business Valuator can determine its true value if you or your spouse own a business. They assess the financial health, assets, liabilities, and earning potential of the business to ensure an accurate representation for equitable division.

An Estate Planner revisits your estate planning documents, such as wills, trusts, and powers of attorney. Consulting with an estate planner can help you navigate the necessary updates to ensure your wishes are properly reflected, and your assets are protected for the future.

While mediation is an essential part of most out-of-court separation agreements, it’s essential to recognize the value of other professionals. Specialists provide knowledge and guidance to protect your interests and help you secure a balanced, bullet-proof agreement. Remember, every divorce is unique, and the need for additional professionals will vary depending on the complexity of your financial and family situation. Investing in professionals can provide the support necessary to navigate divorce successfully and save you money in the long run.

With the right team by your side, you can confidently move forward, knowing that you have the best agreement possible.

ABOUT THE AUTHOR

Mike MacConnell, founder of Reflective Mediation, is an accredited family mediator, conflict coach, educator and author. He is the highest-ranked mediator on Google in the greater Toronto area, with over 180 5-star reviews. To book your free consultation click here.

Coaching Within Mediation: A Key to Improving Outcomes

Mediation is a powerful tool for resolving conflicts and finding mutually beneficial solutions. As a family mediator, I have noticed that incorporating coaching into the mediation process, between sessions, and occasionally within a session, can enhance its effectiveness and help achieve a faster, more positive result.

 Private coaching by the mediator isn’t traditionally offered because it risks the mediator/coach being perceived as aligning with one client over the other. I solve that by informing the non-coaching client about it in advance, and asking them to approve or veto the coaching opportunity. In every case I’ve ever had, the non-coaching client gladly agrees. They want the other party to negotiate more effectively.

 Let’s explore some reasons why coaching can facilitate the mediation process:

1. Emotional Regulation: Strong emotions often hinder mediation. Perhaps a client is nervous, hesitant and barely participating. Or overly expressive and aggressive. By engaging in coaching between mediation sessions, individuals can explore the impact of their own approach in a safe space. Coaching equips participants with valuable emotional regulation techniques, helping those who are shy to speak up, for example, or those who are overly assertive to calm down, whatever will lead to a better outcome.

 2. Communication Skills: One of the primary challenges in mediation is communication breakdown. Misunderstandings, misinterpretations, and ineffective communication can escalate conflicts and prolong the resolution process. With coaching, participants can improve their communication skillsoutside the formal mediation setting. They can learn active listening techniques, develop empathy, and gain a deeper understanding of their own communication styles and patterns. The quiet person can work at being heard and the expressive one to offer more space to the other.

 3. Self-Reflection and Clarity: Coaching encourages self-reflection and self- awareness. By reflecting on their own values, needs, and expectations, individuals gain clarity about what they want and can express it more effectively. Coaching helps people identify their priorities, consider alternative perspectives, and explore creative solutions. This increased self-awareness allows individuals to approach mediation with a more focused and constructive mindset.

 4. Goal Setting and Action Planning: Coaching sessions offer a structured environment for participants to set clear goals and develop strategies to meet them. Individuals can work collaboratively with their coach to identify actionable steps towards their objectives. By defining clear goals, participants gain a sense of direction and purpose.

 5. Strengthening Relationships and Building Trust: With coaching, participants develop a deeper understanding of their own needs, as well as those of the other parties involved. This enhances open listening, which builds empathy and translates into more respectful communication. By promoting respectful interaction, coaching fosters an atmosphere of cooperation which can expedite a resolution.

Integrating coaching into the mediation process can be a game-changer. By providing coaching between mediation sessions on an as-needed basis, I offer participants a way to improve their mediation skills, resulting in faster, more successful outcomes. Building coaching into the process empowers individuals to navigate conflicts effectively and create more sustainable agreements.

ABOUT THE AUTHOR

Mike MacConnell, founder of Reflective Mediation, is an accredited family mediator, conflict coach, educator and author. He is the highest-ranked mediator on Google in the greater Toronto area, with over 180 5-star reviews. To book your free consultation click here.