As I was finishing this article and coming up with a title. I realized that I had written an article entitled, “Timing is Everything” in 2009. Not surprisingly, timing is still very much an issue in mediation. This article will focus on the pace of the mediation and timing as it relates to how fast or slow the mediation process will be conducted.
They say that in real estate the key is “location, location, location.” It could certainly be argued that in mediation the parallel is “Timing, timing, timing.” I have fallen into the trap of having a couple come to me for mediation and agree to start the process but then not following up with them about the issue of timing. That is, were they prepared to start the mediation process? Were they ready to divorce? And, were they ready to have difficult conversations? I simply assumed that they were both ready to “proceed.” You know what they say about assumptions. I have come to learn and believe that in every case, whether it seems obvious or not, we should inquire about the issue of the parties’ readiness and the timing/pace of the mediation and maybe even go so far as to get an informal agreement from the parties about the pace at which they want to proceed. This may be easy and straightforward or it may be the first difficult issue the parties address. Sweeping it under the carpet will only come back to bite you and your clients.
Every several months I send an email to clients who have started working with me and from whom I have not heard in a while, just to “check in.” I recently heard back from one of the parties who told me, “I ended up having to hire a lawyer, xxx doesn’t seem interested in completing mediation. Thank you for all your time, I appreciate it.” This happens occasionally and I have always chalked it up to, “Mediation is not for everyone.” But I can’t help but wonder if it would have been different if I had approached the case differently at the outset, particularly as it relates to the issue of timing and each of the parties’ readiness/willingness/ability to proceed.
So, let’s analyze the two most common scenarios.
Scenario One: Both parties agree to the divorce and appear ready to proceed with the divorce and mediation.
This is seemingly the easy scenario. That is a mirage. First, just because they both indicate that they are ready to proceed does not mean they truly are. Second, even if they truly are, there are numerous barriers to proceeding, and the impacts may affect them differently. Third, even if they are ready, emotionally they may still be in different places. In other words, even if at the initial meeting, the couple appears amicable, ready to proceed and “on the same page,” the mediator should conduct an initial assessment and have a discussion with the parties about timing and readiness to proceed.
Scenario Two: It becomes apparent at the initial meeting that one party wants the divorce and the other party is not ready. Again, this seems that the approach of the mediator to this would be obvious. It is not obvious in the least. I have made the mistake of having a conversation with couples who fit into this category that went something like this. “It is important that you are both ready to proceed with this process. Understand however that Massachusetts is a no-fault state and what that means is that if one party wants a divorce, that party will get their divorce, whether the other party likes it or not. It is just a matter of time.” I then may have a discussion about timing and being emotionally ready. When I step back, however, I see the many problems with the simple statement about the inevitability of the divorce. It may be that in my rush/anxiety/single mindedness to retain the clients, I have traded curiosity for jump starting the process so that I can claim the couple as clients.
Scenario Three: You do not know anything about readiness to proceed because you do not ask. This seems like it would be unusual but in fact it is very real and I would guess not that unusual. A couple comes in (or these days, appears via Zoom), says they have done a lot of research about mediation, they have been recommended to you by numerous people and they are ready to start. You pat yourself on the back, and in your head you tell yourself how great it is that they were referred to you by numerous people. With an internal self-congratulation you proceed to sign the mediation agreement with them and start the process of gathering information about assets, incomes, children etc. What’s wrong with this picture? On the surface, maybe nothing. But below the surface you have again made some assumptions. And, you are potentially gaining a client short term, but losing the clients long term.
How do we avoid the assumptions about readiness to proceed? One way is that we make it not just a habit of being curious, but rather make it a part of the process and routinize it. Below are some suggestions for a checklist of sorts that I suggest using with every couple. When you implement the checklist and when you ask the questions may vary by your own practice. It could come at the initial consultation. It could be done after the parties sign the mediation agreement and before you start to collect demographic and financial information. It could even come after you start to collect some basic information. For my practice, once couples have signed the mediation fee agreement, I spend some time gathering information about basic information like dates of birth, date of marriage, work history, assets, children etc. I then ask them where they are in the process, what they have discussed, what they have been avoiding discussing and what questions they have. In my process, this would be the obvious place for me to ask my timing/readiness questions. Below are some questions I suggest should be asked at the start of every mediation:
If the parties are not on the same page as far as the pace of the mediation, it would be worthwhile having a conversation right at the start. I would start by explaining to the parties that this is normal. That is, that it is normal that their readiness to proceed and their readiness or motivation to finish or anxiety about finishing may be very different, and that in my experience it is really helpful to have a conversation about that at the outset. This avoids problems down the line where one party is “dragging their feet” or one party starts to take unilateral action out of a desire to move things along. Transparency here is hugely important.
In addition, having the conversation about timing and readiness at the beginning creates an anchor to which you can come back. That is, if you are noticing problems with the pace at which it is moving, and one the parties appear to be on completely different tracks, you can always remind them about the initial conversation you had about it and go back to that conversation. This helps to normalize the issue rather than risk the parties feeling like somehow ] they are failing at mediation.
If one party expresses concern about the pace, I would ask that party:
I would ask the other party (the one ready to proceed):
Finally, I would have a discussion with the clients about the pros and cons of waiting. For instance, if waiting would help resolve some of the underlying emotions that are still raw, that is a good thing. If waiting will help clarify some things that are up in the air, like housing, schools for the children, unclear job situations etc. that may also be a good thing.
If parties agree to wait, there may be things they can do in the meantime which will help in the future. For instance, if someone is refinancing and relying on child support as income, most banks will want to see child support payments for 6 months. The parties may decide to start those payments while putting things on hold, just to start the clock. Obviously, this will take some work and may feel to the parties like they are starting, but it could be limited and that limited work could really help later. If they did decide to wait, I would also want to have a conversation with them about being clear about what happens in the meantime as far as expenses, debt, asset accumulation, etc.
In short, having the discussion about timing early on not only sets the emotional stage for both parties being able and ready to start, but brings up important topics early that should be discussed if the process is to be put on hold for some time. Timing is everything and the time to talk about timing is, you guessed it- at the beginning.
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