- You do not have to like your spouse or agree on everything to use ADR.
- Disagreement is exactly why processes like Mediation and Collaborative Divorce exist.
- You need to participate honestly and be willing to discuss the issues that need resolving.
- Both of you need to exchange necessary information, including appropriate financial disclosure.
- You need to make a genuine effort to find solutions, even when you strongly disagree about what those solutions should be.
One misconception about ADR is that it only works when separating spouses still get along. You may think, “Mediation sounds great for people who can sit down and have a reasonable conversation, but that’s not us.” That’s understandable. But if you and your spouse already agreed about everything, you probably wouldn’t need a Mediator or ADR.
ADR is designed to help you deal with disagreement.
You don’t have to be friends. You don’t have to have a friendly relationship with your spouse to mediate your divorce.
You can be angry. You can be hurt. You can disagree about parenting, money, property, or support.
What you need is enough willingness to participate in a process designed to solve those disagreements.
A Mediator can provide structure to conversations that haven’t been productive when you’ve tried to have them yourselves. Instead of repeating the same argument, you can begin identifying what each of you actually needs and what options might address those concerns.
That’s very different from expecting you to simply get along.
Disagreement and High Conflict Aren’t Always the Same Thing
It’s also important to distinguish between a difficult relationship and a situation where ADR may genuinely be inappropriate.
You can strongly disagree and still negotiate.
For example, you may both want to keep the family home. You may disagree about parenting schedules. You may have completely different views about spousal support.
Those are disputes. They can often be negotiated.
A more serious concern arises when one person cannot participate safely or meaningfully. Family violence, coercive control, serious substance abuse, hidden assets, or a refusal to provide financial information can change whether a particular ADR process is appropriate.
You need to assess your actual circumstances to determine if ADR is a viable option for you.
The Right Structure Can Make a Difference
ADR isn’t one single process.
If sitting in the same room with your spouse isn’t productive, Mediation can sometimes be structured differently. Lawyers may become more involved. You may communicate through professionals rather than directly.
Collaborative Divorce provides another level of support because you each have your own lawyer participating in the negotiations. You can also involve Financial Neutrals, Divorce Coaches, or Family Specialists when those areas are creating roadblocks.
The question isn’t simply, “Can we get along?”
A better question is, “What structure gives us the best chance of solving these problems?”
Focus on Interests Instead of Positions
When conflict develops, you tend to become positional. You say, “I want the house.” Your spouse says, “You’re not getting the house.” And there you sit.
Interest-based negotiation asks a different question: Why is the house important to you?
Perhaps you want your children to remain near their school. Maybe your spouse wants enough equity to purchase another home.
Once you understand those interests, you may discover solutions that weren’t available when you were simply arguing over who gets the house.
That is where ADR can be particularly effective.
When Court Becomes Necessary
Sometimes you do need court. When you need a judge to protect someone, require disclosure, or make a decision because meaningful negotiation isn’t possible, court is an important tool.
But conflict alone isn’t a reason to automatically hand your future to a judge.
If you can safely and honestly participate in ADR, you may still have an opportunity to maintain control over your outcome, even if you and your spouse don’t particularly like each other.
You don’t need friendship.
You need a process that allows you to solve problems.
FAQs
Possibly. A Mediator can create structure and keep discussions focused on specific issues. The important question is whether both of you can participate safely and meaningfully.
That does not necessarily rule out ADR. Depending on your circumstances, Mediation and other processes can sometimes be structured to reduce direct interaction.
Serious safety concerns, coercive control, dishonesty about finances, severe substance abuse, or an inability to participate meaningfully may make some forms of ADR inappropriate. You should discuss those concerns with your lawyer before choosing a process.
Pierre Boileau
With over 35 years of practice Pierre Boileau, K.C. has gained experience as a Mediator, Collaborative Family Lawyer, Litigator and now as an Arbitrator. Pierre’s extensive experience has shown him that client satisfaction is maximized when clients have control over their own future. This can best be achieved through interest based negotiation. Only as a last resort, should litigation be considered. When necessary, Pierre relies upon his vast court experience and training.
Pierre remains committed to continuing to practice at a high level with particular care, interest,and sound judgment. He doesn’t shy away from particularly challenging cases. Pierre’s greatest reward comes from the satisfaction of assisting clients through one of the most challenging experiences of their lives.