Long Island Family Law and Mediation Blog
A person may want to mediate a divorce and be disappointed to learn that their spouse will not participate. They may be hoping to keep the costs down, avoid court appearances and work out arrangements for the children without making an already difficult relationship worse. Those are understandable reasons to consider mediation. The difficulty is that one spouse’s willingness does not tell us whether the other spouse will take part.
As a divorce attorney and mediator, I believe mediation is worth considering when the circumstances are appropriate. I also represent people who need to proceed another way. Sometimes mediation never gets started. Other times, the spouses attend sessions but eventually reach a point where they cannot finish the agreement.
The question then becomes what to do about the issues that still need to be resolved.
What If My Spouse Will Not Participate?
In private divorce mediation, both spouses need to be willing to participate. I can explain the process, answer questions and help people understand what they would be agreeing to try. I cannot make an unwilling spouse negotiate a settlement.
There can be different reasons for the reluctance. Someone may think that attending divorce mediation means agreeing to everything their spouse wants. Another person may believe the mediator will represent the spouse who made the initial telephone call. Neither is how a neutral mediation is supposed to work. When I serve as the mediator, I do not represent either spouse, and I do not decide the terms for them.
Sometimes an explanation helps. A spouse can also speak with an independent attorney, we call them review attorneys, before deciding whether to participate. Getting legal advice does not, by itself, prevent someone from mediating. In fact, it is recommended that people consult with their own review attorneys. I do review attorney work. When I am the review attorney I can operate in the background advising my client and, in the unfortunate cases where mediation does not work, I could then potentially become the client’s litigation attorney.
But there may come a point when the answer is simply no. Repeatedly asking the same question may not accomplish anything. A person who wants to move forward then needs advice about the options available without their spouse’s cooperation in mediation.
Do We Have to Get Along to Mediate?
Spouses do not need to agree about everything before they begin. They may disagree about support, the house, parenting arrangements or how to divide retirement accounts. Those are subjects we can work on in mediation.
For example, one spouse may want to sell the house while the other wants to stay until a child finishes high school. That difference does not tell me that mediation cannot work. We would need to discuss the expenses, the mortgage, the equity and whether either proposal is financially realistic. There may be options the spouses have not considered.
Anger or hurt feelings do not necessarily prevent those discussions either. People can be upset about the marriage and still be willing to work on an agreement. I would be more concerned if someone refuses to consider any proposal, will not allow the other person to speak, or treats attending a session as enough participation without doing any of the work needed afterward.
Even then, I would want to understand what is happening. Someone who needs time to obtain advice or think through a proposal is not necessarily refusing to negotiate. The practical question is whether the process is making progress and whether both people can participate meaningfully.
We Need Enough Financial Information
A separation agreement can have consequences for many years. Before deciding what to accept, each spouse needs enough information to understand the proposed terms. Each side is entitled to operate from a position of knowledge. Nobody needs to make financial agreements in the dark as to the finances. Financial disclosure must be voluntarily provided, whatever is need to satisfy the knowledge requirement.
Suppose one spouse says, “You keep your retirement, and I will keep mine.” That might be acceptable to both people. But what are the accounts worth? Does one spouse also have a pension? Are there loans against the accounts? We need to know what the proposal actually involves if there is not an immediate agreement about it.
One spouse having handled the finances during the marriage does not necessarily make mediation unsuitable. Records can be gathered and reviewed, questions can be answered, and independent advice can help a person understand their choices.
Persistent refusal to provide necessary records is a different concern. If a spouse will not disclose accounts, income or debts, it may not be possible to evaluate a settlement adequately through mediation. Formal financial disclosure in a court action may then be needed. A mediator does not have a judge’s authority to compel compliance or decide a disputed financial issue.
Safety and the Ability to Make Decisions Freely
There are also circumstances in which mediation may be inappropriate or unsafe. Domestic violence, threats, coercion and concerns about child abuse require careful attention. A person needs to be able to disagree with a proposal without fearing what will happen afterward.
This is more than a question of whether one spouse speaks more confidently than the other. Someone might appear agreeable during a session because they are afraid to say no. A polite conversation in the mediator’s presence does not resolve that concern.
Mediation requires screening for suitability. Where safety or coercion is an issue, individual legal advice and appropriate protective measures take priority over trying to keep the spouses in a settlement discussion. The particular circumstances and any existing court orders need to be considered.
Some Problems Cannot Wait for an Agreement
A person may be willing to mediate but still need help with an immediate problem. Support may not be getting paid, there may be concerns about money being moved, or the parents may be unable to agree on arrangements for their children.
A mediator can help the spouses discuss temporary arrangements. If they cannot agree and relief is needed, however, an application to the appropriate court may be necessary. Depending on the circumstances, that may involve Supreme Court or Family Court.
Seeking court relief does not necessarily prevent future settlement discussions. It may be possible to address an immediate issue and continue working on the rest. What I would not want is for someone to assume they must leave an urgent problem unresolved just because mediation has been discussed or sessions are underway.
What Happens If Mediation Does Not Work Out?
There are options between continuing unsuccessful mediation indefinitely and preparing for a trial on every issue.
A person can retain an attorney to advise them and attempt to negotiate with their spouse or their spouse’s attorney. In my recent articles, I discussed the matrimonial difficulties letter I sometimes use to begin those communications. Depending on the situation, that can be a way to explore a separation agreement before filing for divorce.
If an action needs to be commenced, settlement efforts can continue. Financial disclosure, advice from each spouse’s attorney and court conferences may help resolve issues that could not be worked out earlier. A case that begins as contested may ultimately be settled by agreement.
There is an important distinction concerning my role. When I represent one spouse from the outset, I am that person’s attorney. When I have served as the couple’s mediator, I have been acting as a neutral. A failed mediation does not mean I can simply become one spouse’s attorney against the other. Different professional obligations apply, and the spouses should obtain independent advice about their next steps.
It is also worth considering what was accomplished before mediation ended. The spouses may have made progress on parenting arrangements but remain apart on finances. Their attorneys can evaluate any proposed terms and whether a properly documented partial agreement makes sense. Discussions during mediation should not automatically be treated as a complete, binding settlement.
Sometimes mediation becomes an option again later, after information has been exchanged or the spouses have had an opportunity to obtain advice. Other cases need to proceed through attorney negotiations or court. I would look at what remains unresolved, what information or relief is needed, and whether further mediation has a reasonable prospect of helping. Wanting an amicable divorce is a useful starting point, but the next step has to fit the circumstances of the people involved. Feel free to contact us for your free initial consultation, up to a half hour. If I am to possibly be the mediator for the couple then the free initial consulation is with both spouses together.