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Divorce Mediation: Respect, Privacy, and Necessary Disclosure

Divorce Mediation: Respect, Privacy, and Necessary Disclosure
July 9, 2019 Rachel Alexander, Esq.
Divorce Mediation: Respect, Privacy and Necessary Disclosure by Rachel Alexander

{5 minutes to read} As a mediator, there are subjects about which I would be remiss if I did not ask. By way of analogy, consider a doctor’s office visit. No one particularly wants to undress, but in order for the doctor to do her job, unencumbered, she must be allowed access. You put on that horrible, ill-fitting smock and get up on the table in some humiliating kind of uncomfortable position. We all do this in one context or another because being helped requires being seen, and being seen takes precedence over being comfortable.

“As a mediator, there are subjects about which I would be remiss if I did not ask. By way of analogy, consider a doctor’s office visit.”

In mediation, spouses do this through candor and cooperation. As a helping professional, the more information I have, the more equipped I am to be of service. In order to draft a Marital Settlement Agreement that achieves its objectives, a comprehensive sense of the issues at stake is essential.

The Mystery Deepens 

What Led You to Make This Appointment? How Do You Hope I Can Help?

When clients share some background on how they have arrived at the mediator’s office it is invariably valuable in informing the subsequent process. However, inviting discussion about what brought couples to seek mediation (and separation/divorce) can be triggering. Determining whether to ask certain questions is often like handling electric eels. Individuals may be full of self-recrimination, blame, and painful emotions. The subject may be undigested and not yet processed into shareable language. When that is the case, it need not be dragged forth.

Clients may prefer to talk with the mediator individually when sharing information of a combustible nature.

“In short: Danger, in this context, indicates something that should be disclosed privately.”

How do you know if it’s something to share jointly or in private session (i.e. caucus)? This requires the individual to check inside and see whether fear, dread, and/or anxiety come up when considering raising a particular concern. Any of these feelings, if so strong that they pose an obstacle to disclosure, are good indicators that the thing both needs to be shared and may be better shared privately. 

In short: Danger, in this context, indicates something that should be disclosed privately.

Mediation must be honest but should be neither excruciating nor emotionally dangerous. If divulging something must be done, we must find a way to do so while simultaneously minimizing trauma and future harm.

Live Wires in the Relationship Need Not Be Tread Upon!

Live wires are those things that call one or both parties into defensive posturing with blinders on. 

Issues like anger management, alcohol or drug abuse, concern for the wellbeing of the kids when in the other spouse’s care — all of these are imperative to share with the mediator, as they can go to the core of not only your settlement but your safety. These are the items that impact parenting, finance, and overall stability. Keeping these unhappy but important items out of your mediation is like remaining fully clothed at your melanoma screening. 

Self-Determination for Both Parties and Mediator.

If clients feel there are certain things that would be undone by sharing, I want to respect that. 

If it feels like it’s making it impossible for me to do my job adequately, then that’s going to be where my self-determination comes in.

How Can Clients Share Privately in an Atmosphere of Transparency?

Transparency around the procedure is the best answer to this. If it hasn’t already been broached by the mediator, the party can feel free to ask this procedural question in session or privately. The mediator can get the approval of both parties prior to having a one-on-one conversation, thus providing an open and agreed-to environment to maximize effective communication. In most cases, when parties have the need and the option, they agree to speak separately. The substance of what is shared confidentially can then be discussed between the parties and mediator, to determine what pieces should be brought into session and how they can then be considered.

Rachel AlexanderRachel Alexander
Alexander Mediation Group
119 West Valley Brook Rd
Califon, NJ 07830
(908) 310-3397‬

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