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Mediating in Mystery

Mediating in Mystery
June 18, 2019 Rachel Alexander, Esq.
Mediating in Mystery by Rachel Alexander

{3 minutes to read} How much personal information does your mediator need?

Privacy Versus Transparency

Every marriage is comprised of intimate, deeply personal experiences. This article contemplates how much, if any, of this personal information couples should share with their mediator.

Intimate and personal are highly subjective terms. In this context, they could be defined as anything that has not yet been processed by the parties. For example, a reference to a sexual compulsion by a couple who has benefitted by treatment for it could feel safe and appropriate to the mediation. By contrast, a reference to an eating disorder, unacknowledged by the couple, could feel exploitative and harm the mediation. If the information is necessary and relevant to successfully completing the mediation process, it should be shared in a way that is respectful. Approaching sensitive issues from a cautious distance — i.e. with more general language initially, is advised.

Ultimately, mediation is a process rooted in self-determinism. Clients are afforded significant, though not complete, control over disclosure.

Mediation also affords confidentiality that litigation cannot. Clients can disclose, free of potential consequences of disclosures made in court.

In the dismantling of marriage, I opt to let the most personal bond and private history alone. In an implicit way, this deliberate non-interference respects the husband and wife as a unit. Acknowledging their exclusive ownership of shared personal history honors the ‘something’ between them that neither the mediator nor the divorce can remove.

Here are some guidelines for revealing questionable information:

If the Primary Intent of Disclosing Is:

  1. To embarrass or shame the other;
  2. To emotionally blackmail or control the other or the mediation process; and/or
  3. To harm in any way.

Recommendation: Refrain (Sshhh!)

Revealing information should not be weaponized. The right motivation in sharing is to inform the process, not harm the other party. If you are in a highly emotional state and unclear as to whether to share something, hold off until you have allowed more time to clarify your motives and calm your emotions.

If the Intention Is Anchored in Furthering and Informing the Process:

  1. When the only reason you wouldn’t share is to avoid momentary embarrassment;
  2. When the disclosure contains information that makes up over 10% of why you are in mediation, to begin with;
  3. When the information would be relevant for anyone evaluating the children or recommending a custody arrangement;
  4. When the information is necessary to reach a fair financial settlement;
  5. If you were before the court, you would have to disclose; and
  6. When leaving the information out causes you concern that the “right” result won’t be reached.

Recommendation: Share (Speak up!)

In our next article, we will examine when sharing is vital but cannot be done in the presence of your spouse. Join us!

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

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