Mending Fences
Mending Fences
Buyer Beware: Unraveling the Complexity of Friendly Divorce Mediation
So you thought mediation would be easy. Well, even amicable divorces can be stressful and participants may feel at times like they are lost in uncharted territory. That's exactly what Jen Hawthorne Kelsey and Patrice Brymner delve into in this episode of Mending Fences. As seasoned guides, family law mediators, and collaborative law attorneys, Jen and Patrice illuminate the complexities that even the most cooperative separations can conceal. As always, your hosts' goal is helping people become better informed masters of their own decision-making .
It's a candid conversation that strips away the myths about what 'should' happen during a divorce and instead, fosters a realistic understanding of the unique paths each couple must navigate. So, whether you’re a couple seeking peaceful closure or a listener curious about the inner workings of mediation , join us for an episode that promises both enlightenment and encouragement.
Welcome to Mending Fences, a podcast about effective ways to communicate and live with differences. I'm Patrice Bremener.
Speaker 2:And I'm Jen Hawthorne. We're both family law mediators and collaborative law attorneys, but our conversations go well beyond family law. We explore the personal, interpersonal, legal and cultural impact of conflict.
Speaker 1:Hi and welcome back to Mending Fences. I'm Patrice Bremener and I'm here today with Jen Hawthorne Kelsey. Hi, patrice, how are you, jen Good? How are you Good? Jen and I have been talking about some things that we want to bring into the mix on Mending Fences, and these are issues that are specific to divorce, dispute resolution and things that I don't know maybe you have a better way of framing it but just things that might be unexpected to clients and, I think, things that could seem to go wrong or, from a client's perspective, feel like problems when really, from our perspective, they might be part of the process.
Speaker 2:Yeah, I don't think I have a better way to describe it. I think that's completely accurate. I think when people enter mediation collaborative, out of court divorce, conflict resolution in general people oftentimes are coming in saying we want this to be really amicable, and I think it can be really jarring and surprising to them that even an amicable process for divorce can still be really hard and still has challenges. So one of the first challenges that I think surprises clients or they're not.
Speaker 2:Maybe not surprise isn't the right word, but it sounds different when you say we want to make the decisions for ourselves. Then, when you come to the realization no one is going to make a decision for us and if we can't come to an agreement, this process isn't going to work. So we really need to step back and think about how are we going to come to an agreement? Because this person, the mediator or even the collaborative team, aren't going to tell us what to do. They might provide guidance, they might provide legal information, they're going to help us brainstorm, they're going to work on helping us try to problem solve, but ultimately, if we can't agree, no one is sitting there in the position to say this is what you're going to do and the way.
Speaker 1:I see that come up, I know and I really I'm nodding my head as you're talking, because I recognize this as a place where people can get frustrated. And I've heard people say, people who've been through mediation and have come to me after mediation for whatever service, and they'll say the mediator just didn't do anything. He never, she never told us what to do. And it's like right, because it's not the mediator's job to tell you what to do. And I think people like you said, they love the idea of being the decision makers for themselves, but they still want, sometimes consciously or unconsciously, like this fallback. They're looking to the professionals to tell them what usually happens. We just want this to go the way that it would normally go, we want this, and they'll use those terms like what's supposed to happen, and a lot of times there is no supposed to happen, and so there's just here's a range of choices or here are some options for you to consider, and they are unprepared for having some difficult conversations around that if they're not already in agreement.
Speaker 2:Right, and I think it's especially complicated because even the things that sound like when they first hear about them, like this, should be easy, because there's just a, a number that spit out from a calculation or something like that. In fact, because judges even have so much broad discretion, there isn't a way to give them solid information on exactly what is the typical, because they range so much and each family is so different and every agreement looks so different, but all within the bounds of what a judge would accept.
Speaker 1:Something you mentioned when we talked about this before, jen, is, as people get into it and this happens from time to time people will come to mediation or even a collaborative process and say, well, this should be pretty simple, because we've talked about this a lot and we both agree that we want this or that, and we already know how this is going to go. What surprises people is as they get into a process and start hearing about what the legal options are. What they planned to do might not fit easily into what's legally available, and then they've got to recalibrate to how do we make what we wanted to do fit into something that the court is going to accept?
Speaker 2:Right. Certainly, it can be a surprise to folks in many situations when they learn that judges do have to approve the agreement in Massachusetts and also that judges are always looking for it to be clear, unambiguous and enforceable. That often means when people have tentatively come to an agreement outside of court, even if, when they hear the legal information, their agreement at its core doesn't need to change. There's so much more detail that needs to go into an agreement than people are expecting. The process for that reason, and several others, can take a lot longer too, which is really a second frustration for people.
Speaker 1:Getting that legal reality check can slow things down and it can make the decision making more complicated as people try to think through. What are the ramifications, what rights and obligations are we really creating this? What I'm about to say will overlap with another topic I think we'll discuss on a different podcast, but that's a point when a mediator might suggest that the clients consult with outside counsel and hear from their perspective the legal options specific to that client. What's in their best interest.
Speaker 2:Right, there's lots of legal topics that are confusing and they are complicated and there are lots of choices that could be made. I agree, having a lawyer sit down with you and actually walk through what it means in your situation can be helpful, because it's important to remember that if you're working with a mediator, that person really is providing just the legal information and the application of facts from your situation to the law is being done in an informational way, which sometimes can make things a little bit more confusing, at least initially.
Speaker 1:Yeah, I think that the takeaway really is to come into mediation prepared to do hard work, prepared to hit bumps along the way. Yes, assume that there may be delays. Delays happen for a lot of different reasons. Right, as much as you have talked with each other in preparation for this, it's all useful.
Speaker 2:All those conversations are still great to have them Absolutely Coming in with the idea that you want things to stay amicable really important because then when you reach those really hard parts, you can both remind yourself or the mediator can help you remember you entered this process to stay amicable. This is just a blip in the road, or the top of an arc, as one might describe it. You're going to come back down, you're going to get to an agreement. You just need to work through the hard parts.
Speaker 1:Yeah, if you can just stay committed to really listening to each other, making sure that you have a chance to say what you need to say, but you're listening to the other person and stay committed to finding solutions and problem solving.
Speaker 2:That when you come to a delay, try although it is frustrating and oftentimes this is not a process you want to sit in for a long time, because it can feel like limbo, which is never a comfortable place for most people. But just remember that taking that pause to get to an emotionally ready place to have a conversation or and or to gather more actual information so that you're making really practical decisions, ultimately will serve both of you better. It's okay to have those delays.
Speaker 1:Absolutely Really good. Yeah, so we're going to keep talking, patrice. Thanks, john.