10 Tips for Discussing With Your Soon-To-Be-Ex-Spouse Whether Mediation Is Right For You

by Jeremy Masys

At the outset of a divorce, there are typically two difficult series of conversations you and your soon-to-be-ex-spouse have, or at least should be having: 1) whether one or both of you is moving ahead with seeking a divorce, and 2) figuring out the process (e.g. both of you hire expensive lawyers, trying to figure the paperwork and negotiation out on your own, and so on) by which you are going to get the divorce done in the Court so that you are legally divorced and both of you get a result you are comfortable with moving forward in life. 

I and many others in the California family law field are strong proponents of the proposition that mediation is in many cases a far more preferable alternative to resolving your divorce legally, as compared to the stressful and expensive process of having attorneys fight it out inside or outside of court, or the confusing and annoying process of two people trying to figure out the law and paperwork on their own when they’re not even sure what their rights and obligations are under California law. 

The benefits of mediation to resolve your divorce are well-explained in this blog and elsewhere, but very basically: divorce mediation with a knowledgeable and skilled legal professional gives you the best of both worlds in that you can understand your rights and options with the guidance of an impartial mediation while avoiding the high legal fees, stress, and very long delay that often comes with trying to argue your way to a result in an overcrowded, overburdened public courtroom in a front of a judge who has hundreds and hundreds of cases on their docket. 

But it takes two to tango with mediation. Because mediation is a voluntary process, both you and your spouse have to agree to enter into mediation, and you have to agree on the same mediator. And trying to get an agreement on anything at the time your marriage is dissolving may feel like a task not worth the effort. But let’s be very clear: getting to a successful mediation is absolutely worth the effort when compared to months or years in court, legal fees to both of you in the tens of thousands (if not higher), and the severe emotional strain that a contested, adversarial and drawn-out legal fight can put on you and your children. 

In other words, yes, getting an agreement from your spouse to try mediation may be a chore, but it’s worth it in the vast majority of cases. 

With that, here are 10 tips for discussing with your soon-to-be-ex-spouse whether mediation is right for you: 

  1. Before you have the discussion, do a little bit of your own research (as in an hour or so, but more if you feel so led) on the benefits of mediation, so you are prepared to make a case for why it would be a good idea for both of you. 
  2. Taking that one step further, spend a little time thinking about the tangible benefits mediation could be for the two of you in your specific circumstances and write those down. Such reasons could be: 1) we can figure out a custody schedule for [insert your child’s name] that works for her and us without dragging it through the courts; 2) we can get this done without digging into our 401ks; 3) we can figure out a way to keep this house and split the equity fairly, while preserving our collective net worth by not spending tons of money on lawyers, etc. 
  3. Email or print out articles on the benefits of mediation that you think would appeal to your spouse and share them with him or her.
  4. Find the names of a couple mediators that you would feel comfortable working with, and who would potentially appeal to your spouse as well. This way you can give options so as it does not seem to be forcing the process of working with a specific mediator. 
  5. Set a specific time to have the conversation on “how we are going to get this done” so that your spouse doesn’t feel ambushed, and so that they have time to prepare and think about what their goals and concerns are. 
  6. In the conversation, stress that mediation is a voluntary process and that both you and your spouse can choose to discontinue the process at any time and go to court if they so choose. In other words, neither party is giving up anything other than the modest time and fees associated with mediation to try the process out. 
  7. Also make it clear to the other spouse that a mediator – by definition – cannot and will not force any decisions on him or her. 
  8. Encourage your spouse to do their own research if they want, and to seek out other names of mediators if they so choose.
  9. Don’t demand an answer in a first conversation, although, if you get one, great. Understand that the other spouse likely has their own fears and insecurities about the process and may need time to get their mind around what their options are. 
  10. That said, do be persistent and patient with encouraging mediation. You may well want to say “screw it, let’s go to court” in a moment of frustration, but the negative consequences of that are often so great that sucking it up and letting the process of agreeing to mediation play out is worth the annoyance and minor delay. 

Contact a Los Angeles Divorce Mediator With Further Questions

At the Mediation and Law Offices of Jeremy Masys, I serve as a mediator between divorcing spouses and consulting attorney to those in mediation. If you have any questions about mediation, please contact me at 213-478-0089 or by entering your information here.