Peaceful Divorce

One of the standards of practice in mediation has always been that the mediator should recognize that self-determination is a major part of the decision-making of the participants. But what is self-determination?

Self-determination is based on the individual's ability to make their own informed decisions based on their knowledge of their needs and the best interests of their children.

When guided by self-determination, divorcing spouses voluntarily come to their own conclusions - with the possible solutions based on the information collected.

A mediator should encourage participants to make their own informed decisions - but how do mediators, whose role is to be a third party neutral, assist participants to better understand their needs and the needs of others? One of the things I do is make clear that they are “allowed” to withdraw from the mediation process at any time, and that an agreement is not absolutely necessary.

An unavoidable pitfall of self-determination is the possibility that  a party is not making an informed decision - or they are not thinking about it at all.

Imagine a couple coming in to see a mediator, and the wife says “All I need is $30,000 and my car, and I'm out of here.” Is she really aware of what is on the table? How does a mediator deal with that situation? In this particular case the woman had an attorney, but the attorney was not present when she made that statement. I immediately called both attorneys so we could discuss the matter, because I knew it wasn't rational; the couple was sitting on roughly $900,000 worth of assets.

This is the fine line that a neutral mediator must walk. In my practice, I will not let either spouse make bad decisions like the one above - at least, not without getting them in touch with their attorneys. Sometimes people go ahead with the bad decisions they make despite the advice of experts, but there is nothing that can be done about those cases.

Mediation is, after all, about self-determination.

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