Using Mediation with an Unwilling Participant

One of the things we commonly see at Equitable Mediation Services of New Jersey are couples in which one participant is in favor of using our divorce mediation services and one is not.  One of the individuals is convinced of the benefits of mediation and one of them doesn’t know a single thing about divorce mediation and is reluctant or unwilling to even come to a free consultation.  The thing about mediation is this: unlike litigating when the participants are compelled by law to respond to a complaint and show up on a specific date for a court-hearing, mediation is a voluntary process in which both parties must be willing to come to on their own, without coercion.  Try as we might, there is simply no way to get an unwilling party to come to mediation if they simply do not want to.

Does that mean that it doesn’t take a little bit of explaining to get your spouse to come to a mediation session or free consultation?  Of course not.  More often than not, one of you has been thinking about getting a divorce for a longer period of time than the other.  You’ve perhaps lost sleep over it, thought about it while driving in your car only to find you missed your turn-off or sat at your desk at work worried about what your life might look like post-divorce.  By the time you’ve reached the decision to get a divorce and seek out a NJ divorce mediator, may have been months and possibly years before you finally take that next step towards your future.

Add to this is more likely than not, your spouse has little or only some idea of what you might be thinking.  Perhaps they too have felt the strain on your relationship lately or maybe you’ve even floated the idea in a discussion with them before coming to a final decision but the chances are one of you has been thinking of it a lot more than the other.  So when the time comes and you’re ready to proceed with divorce mediation, it may come as quite a shock to the other party that you’re already this far down the road.  This is usually exaggerated by the fact that one of the reasons you may be contemplating a divorce in the first place is your lack of communication or of being heard by your spouse.  Both are  common causes of marital duress and often lead to feeling of isolation and unhappiness and cause people to contemplate divorce.

So how do we address the unwilling participant’s reluctance?  Well, one thing is a sad but common truth:  in the State of New Jersey it may take two individuals to get married but it only takes one to get divorced.  And when it comes to getting divorce you have a choice.  The way I see it and explain it to them is this:

Litigate and:

• Spend anywhere from $27,000 to $78,000 on average
• Destroy what little relationship you have left with you soon to be ex-spouse
• Ruin any chance of a normal relationship with your children as litigation brings out the worst in everyone and trust me, they’ll hold it against you for a long, long time
• Have your marriage judged in the court of public opinion as litigated divorces are a part of the public record and anyone can come into a courtroom and watch the proceedings as they happen (and believe me, people do it just for the gossip)

Or Mediate and:

• Spend about $5,000 to $7,000 total.
• Maintain any chance of a relationship you may have with your ex as remember they are the mother / father of your children and you will have to see them for as long as you interact with regard to the kids
• Work to build a healthy relationship with your children by letting them know you aren’t going anywhere and you’re still their mom or dad instead of spending emotional capital on answer lawyer’s questions and appearing in court
• Discuss these sensitive issues in complete confidentiality and privacy, off the public record in a private mediation session.

Is everyone rational enough to see these two lists and choose mediation?  No, probably not.  But I can tell you that from experience that anyone who isn’t rational enough to do so, isn’t a good candidate for mediation so you’ll probably wind up fighting it out in court anyway.  So approach your spouse, show them this article and if you think you’re a good candidate for mediation, contact us and we’d be happy to set up a free, no-obligation consultation for your and your spouse to come in and see us one of our six central NJ office locations.   We know that once you learn more about divorce mediation and how mediation can benefit you, you’ll truly agree it is the smarter way to divorce.