When Divorce Mediation Is (and Isn’t) The Right Fit,
Part Two of an Interview with Divorce Attorney-Mediator Rachel Green
Rachel Green is a well-known family and divorce attorney-mediator located in Brooklyn, New York. Rachel was trained as a divorce litigator but left litigation to found her own law practice offering divorce mediation and collaborative law as out of court resolution options. When she first started offering divorce mediation twenty-two years ago it was a rarity, but Rachel knew she was meant to be a consensus builder.
In part two of this interview, we discuss which couples are best suited for divorce mediation, when to involve children, and how to deal with anger.
Casey: Is there a typical couple that’s best suited for mediation?
Green: Not being out for revenge is a very important piece of it. I mean, a friend of mine was telling me about litigation she had with a very wealthy couple fighting over a retirement account with several million dollars in it, and the wife said to her lawyer — “I would rather pay it all to you than give it to him.” So, that case would not be appropriate for divorce mediation.
You sort of have to be able to say, “We’ll always have shared these years together. I’m not trying to destroy you. I hope you do well in the future. I hope I do well in the future. Let’s just try to find a reasonable way for us to split.” And then you also have to be willing to disclose all your assets.
And mediation works well for people with kids who are able to recognize that their kids will never thank them for destroying the other parent. And that can sometimes be a unifying force to help them reach an agreement.
Casey: Which couples aren’t a good fit for divorce mediation?
Green: Mediation requires that you be willing to sit in the same room with the other person and try to hear where they’re coming from, even if you don’t agree with their perspective.
So for couples where there’s been intimate partner violence or where there’s a real dynamic of power and control, where one person is trying to control the other person, those cases are kind of generally agreed to be not appropriate for mediation. There’s something about crossing the line of physical violence that indicates a lack of empathy, a lack of being able to put yourself in the shoes of the other person, such that I think it raises the question of whether the case is mediate-able. And also, if you’re sitting there afraid that if you say the wrong thing you’re going to get punished for it later, it doesn’t create an environment where you can have an open and honest dialog.
People usually know whether they can trust their spouse, and certainly, someone who has been hiding assets or has been ferrying money off to the Cayman Islands for years, and the spouse suspects it, but can’t verify — that case would not be appropriate for divorce mediation.
Shevin: What if you are very angry? You’re very angry, but you don’t think your soon-to-be-ex would intentionally screw you over and you want to keep your costs down. Would you still be a candidate for mediation?
Green: Yes. Anger can be a very useful emotion. Anger is what they call a secondary emotion — usually, there is hurt, fear, anxiety, something else underneath the anger. Anger is a sign that your needs have not been met in some very deep way. When someone is very angry mediation is an opportunity for that person to explore his or her anger and come to an understanding of why they are feeling so angry. And that can be very valuable information to bring to the table. It can help people clarify their needs and ultimately, that’s what we’re trying to get down to in our conversation in mediation — what they need to move forward.
I certainly work to try to give both sides the same amount of air time during our discussion. But if somebody’s angry, it can be very empowering for that person to be able to have me there to create a safe, calm environment and help them to express their anger and actually voice it and say, you know, “You really failed me in this regard.” And sometimes the response is an apology and that can be very meaningful. It’s very normal that there’s anger at the end of a long relationship.
Shevin: When do you think people should check in with themselves and say, you know what, maybe the mediation process isn’t working and we should try something else?
Green: You know, that’s a very tough question because I have literally not experienced cases where it was very clear to me that they should quit mediation. I have found that every couple if they stick with the process, we come to an agreement. Some of them take longer than others, but if they keep coming back we will find a solution.
Shevin: When people are shopping around for a mediator, what should people look for when they’re comparing mediators?
Green: Well, there’s no state certification, but there are certifications from private groups. So, the New York State Council on Divorce Mediation has an accreditation program for advanced mediators and there’s the Academy of Professional Mediators that has an advanced practitioner level membership. So, certainly, I would look for somebody who has been doing this work long enough that they’re affiliated with professional organizations and getting the accreditations that are available because that shows a commitment to the field.
I also think there is a real difference between the perspectives of litigators and mediators. So, if the mediator is also an attorney, I would look to see whether they’re someone who has truly made what we call the paradigm shift to the dispute resolution world and is not litigating.
And then I guess the last piece of it is just kind of the fit. Talk to the person on the phone, make sure they’re available, and that you just feel comfortable with the person. And most mediators offer a lower cost consultation so you and your ex could ask to just come by and meet with the person to make sure you both feel comfortable.
Shevin: Have you ever co-mediated with other professionals?
Green: I think co-mediation, when you’re doing it with someone who’s good, is a really superior process because there are always moments where I’m looking at one person and my co-mediator is looking at the other person and seeing different things. And then we can compare notes at the end.
Shevin: It’s good for people to know that for discrete issues their mediator could work with another professional who has separate expertise.
Green: Oh, absolutely. I’m working with a couple right now that is also working with a financial advisor (he’s also trained in mediation, so he’s working as a neutral). They have very complicated finances so he’s able to run tax implications of different scenarios and help them to make those financial decisions with more information. I’ve also brought in also child psychologists when there’s some specific issue regarding children.
Shevin: Do you think there is a role for attorneys to play as independent advisors to people during mediation?
Green: I do give my clients the choice of whether they want to meet with a reviewing attorney. I think review attorneys can be very helpful, certainly even if just for the sleeping at night factor — people feel like they have been fully informed and the review attorneys can be a check and balance on the process and make sure that the agreement says what they believe they agreed to and that they understand where they have varied from plain vanilla law. But I also have had the situation where reviewing attorneys have exploded the agreement. So I’m very careful with my referral list.
It’s often the families that have enough money to litigate that find the reviewing attorney doesn’t counsel them to see the big picture, and move forward, and remember that the other person is their kid’s parent, but instead is like the devil whispering in their ear saying, “You should get more. You should get more.”
Shevin: When is the right time to seek advice from a review attorney during mediation?
Green: It’s a very personal decision and a lot of it depends on the person’s comfort with the financial information in the marriage. If it’s someone who’s never handled the finances, they may want to work with someone in advance so that they feel more prepared for the negotiation. And what I find is that people who are confident that they understand the situation are more confident in making their own positions.
Shevin: Do you ever involve children in mediation?
Green: I have. When they’re older. Teenagers. There have been times that I’ve had the child come in and have some input into the process. Because just like adults, children, if they are allowed to have some input, they have more buy-in in the final agreement, in the final schedule.
I had a case where the daughter was a very serious ice skater and she wanted to move up to New Hampshire to study with this coach. And her father understandably didn’t want her to move. And then she came in and kind of made her case and convinced her father to let her go up for her junior and senior years of high school. He was able to talk about how much he was going to miss her and we came up with schedules for him to come up and visit. And for her to come down for some holidays.
Her participation was crucial because when her father was just hearing his ex-wife express it, he kind of suspected that she was just trying to get the child away from him. But when the daughter was there to explain herself what she was thinking, it was a completely different discussion.