Neutral—But Not Silent!

Aug 20, 2021

Clients often ask me, “What do you think?” The question is totally understandable. Most of my clients haven’t been divorced before, so this is a new and challenging time for them, and they are seeking help.

Any answer I may offer to that question will sound like my opinion, and opinions are usually not neutral.

Similarly, when first meeting with clients, I’ve been asked what I will do if I think an agreement they are making is not “fair.”

Leaving aside the premise that “fair” is subjective, this raises an important question, namely, what is a mediator to do when the mediator thinks that an agreement between the spouses is in fact one-sided?

For me, the answer is based on two principles: informed decision making and self-determination.

Throughout the mediation process, I am facilitating the exchange of information, whether it be legal information for you if you don’t retain an attorney during mediation, or analysis of financial information provided by you to create a common understanding of financial circumstances.

In those rare circumstances where I can see a true imbalance in the negotiated settlement, I use the information of the settlement to test the decisions that have been made and seemingly accepted by both of you. For example, in a recent case, I provided a summary of an unbalanced settlement in clear but un-opinionated terms, so that the person who appeared to be getting much less could see how much less they were getting. Similarly, where the assets being divided by agreement seemed to leave that same spouse at a financial disadvantage, I provided the information without comment. Numbers don’t lie, and numbers by themselves reflect neutral information.

And this is where self-determination fits it. I may personally think that a settlement is unbalanced, so I may offer information—to give you space and time to reconsider and reopen the discussion, or (as in the case above) to consult with an attorney and get the support of legal advice. However, ultimately, it will be your decision alone, and not mine; you are the one who determines what is acceptable. As a final step, I may also exercise my own curiosity to ask you why you feel a particular agreement is acceptable in light of the objective information that has been shared. The answer quite often reveals a set of values or principles that are more important to you than the information itself.

Being neutral is not the same as being a potted plant in the mediation room! There is plenty I as mediator can say and do to help you make the decisions that work for you without inserting my own opinions and judgments into the mediation process.

Being neutral is not the same as being a potted plant in the mediation room! There is plenty I as mediator can say and do to help you make the decisions that work for you without inserting my own opinions and judgments into the mediation process.