What NOT to Say During Mediation (Part 2)

Awhile ago, I wrote an article called 4 Things NOT to Say During Mediation. The article was extremely popular, so I thought I’d write part 2– what NOT to say during mediation

Here is What NOT to say during mediation, part 2

1. YOU wanted the divorce so you can pay for the mediator/attorney.

It takes two to get to the point where one spouse wants a divorce. Even if one person cheated, or has a substance abuse problem or decided he/she isn’t in love any longer, that person will have a different perspective on how things played out.

The person who cheated might say there are things the other spouse could have done to be a better spouse or to be different in the marriage. Mediation is forward-focused, so while the past may play a role in getting to the point where one wants a divorce, communicating in a different or better way will get the couple through the divorce to the finish line. Since Illinois is a no-fault divorce state, none of this matters anyway and mediation/attorneys’ fees are often taken out of the marital estate in any event.

2. You cheated on me so I should have the parenting schedule I want for our children. Or even worse, you do not deserve time with our children because you cheated on me.

Mediation is not payback. Work schedules, travel for work, parenting styles, perhaps someone who has been a stay-at-home parent all play into the parenting schedule with no bearing on whose fault the divorce was. The schedule has nothing to do with who may have been wrong, who wanted the divorce, or cheated. No matter how unfair it feels or how hurt you are, assessing blame is not the best way to mediate your divorce. Deciding how to move forward to the best outcome for your kids is what is most important.

3. I saved for our retirement but you’re divorcing me so I should not have to share mine 50/50. 

This is not a choice.  Illinois law dictates that you are sharing retirement unless there is non-marital or pre-marital portion which belongs only to one spouse. Inheritance from a parent or grandparent is also off the table if it has not been deposited into a joint account or you can trace what is yours from an inheritance. That being said, in mediation there are ways to be creative with division of the retirement accounts if one has saved more or one has spent money on what the other considers unnecessary items. It is all a negotiation.

4. I do not want to pay spousal support, share my salary or share my bonus. It should all be for me because we will not be married any longer.

Again, this is a question of Illinois law.  If the Judge determines that spousal support is appropriate under the factors prescribed by Illinois law, it will be ordered.  Much better for you to agree in mediation than have to prove to a Judge that you do not want to pay your spouse when you earn more than he/she earns.

Bonuses count as income as the statute prescribes “income from all sources” so there is no point in arguing differently unless of course your spouse gets his or her own bonus and it would be fair or equitable for you to each keep your own. These arguments in mediation will only be inflammatory and will not get you anywhere.

Having a positive attitude in mediation is key to a successful outcome. NOT saying things you know will only aggravate your spouse, (even if they are true) will go a long way towards your goal of succeeding in mediating your divorce.

Ellen Feldman has been working as a mediator  since 2007. A graduate of Smith College and Indiana University School of Law, Feldman previously worked as an attorney for 15 years practicing commercial litigation. Since 2006, Ellen has been a volunteer for The Lilac Tree, an Evanston based nonprofit organization assisting women through the process of divorce. Additionally, Feldman completed Family and Divorce Mediation Training through DePaul University Center for Conflict Resolution and Advanced Family Mediation. She is a court-approved mediator for the 19th Judicial Circuit Family Court of Lake County. Learn more by visiting the C.E.L. & Associates website.

Like this article? Check out, “How to Prepare for Divorce Mediation, Both Practically and Emotionally”