Atty Chris Pearsall
Authored By: Christopher Pearsall, RI Divorce Attorney
a.k.a. The Rhode Island Divorce Coach℠
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Rhode Island Divorce mediation is not a new concept. It may or may not be of benefit to you in your spouse in resolving your divorce issues.
Divorce mediation typically involves you and your spouse agreeing that you will sit down with a third party as a mediator in an effort to reach an agreement that is acceptable to both spouses for the resolution of the divorce . . . or perhaps better referred to as the settlement of the marriage.
It remains controversial as to whether the mediator must be an attorney or whether another third-party good at negotiating solutions to family issues is sufficient. From the perspective of a Rhode Island lawyer who focuses his legal practice in the areas of Rhode Island divorce and family law I can see the pros and cons of using either. . . . and they are significant.
Consider this one example:
You and your spouse either know or agree that you will get divorced. Your spouse suggests that you can reach an amicable resolution by sitting down with a Rhode Island marriage and family counselor who has had success in helping couples find common ground deciding what to do to finalize their divorce.
You and your spouse go to this Rhode Island marriage and family counselor. A portion of the mediation session goes like this.
Counselor: [To Both of You] Now, I know this divorce isn't going to be easy for either of you but you both need to be able to survive and move forward with your lives after this is over, wouldn't you agree.
Parties: [Both nodding]
Counselor [to You] : Okay. Now I understand that you've been the main earner in the household, is that right?
You: Yes, that's correct.
Counselor [to Your Spouse]: And you work part-time to help out with the expenses when needed but you mainly use the money you make for your own personal spending money, is that right?
Your Spouse: Yes, that's about right.
Counselor [to You]: Now you have a college degree, is that right?
Your Spouse: And I have my high school diploma.
Counselor: And how long have you two been married?
Your Spouse: We've been together for 15 years and married for almost 12 years of that time.
Counselor: And during that time, who has been making what portion of the income for the most part?
You: I've made about 80 to 85% of our income.
Your Spouse: And I've made the remaining part. I think that is a pretty good estimate.
Counselor: Now in my experience only uncivilized and vindictive people go through a divorce and try to hurt their spouse. I don't think either of you fall into that group because you're here meeting with me today, is that fair to say.
Both You and Your Spouse: Yes.
Counselor [To You]: Okay . . . now you understand that your spouse is going to have a much harder time financially to make a go of it without your income, right?
You: Well, yes.
Counselor [To You]: And it's no secret that your spouse has been relying on you financially for the past 12 years to survive, right?
You: I guess so.
Counselor: Well, here you are getting ready to go through your divorce here in Rhode Island and it's important that we agree regarding the things we're discussing here today so it's important that we are sure about thing that we agree on so it's better if we don't guess. Has your spouse been providing mostly for her own support for the past 12 years?
Counselor: Has your spouse been relying upon someone else other than herself for her financial needs?
Counselor: Okay, can you give me that person's name and address.
You: Well, that person is me!
Counselor: Oh... there isn't anyone else?
You: Not that I know of.
Counselor [To Your Spouse]: Well, is there anyone else that you've been relying on for your financial needs?
Your Spouse: No.
Counselor [To You]: So is it fair to say that your spouse has been relying on you these past 12 years?
Counselor [To Both of You]: Now you both realize that your divorce is going to change that, right?
You and Your Spouse: Yes we do.
Counselor [To Both of You]: And you both realize that your spouse is going to need to survive financially after this divorce, don't you.
You and Your Spouse: That makes sense.
Counselor [To Your Spouse]: Now you probably figured out already that you're probably going to have to work on a full-time basis and take care of yourself after this divorce is done. Have you considered that?
Your Spouse: Yes.
Counselor [To You]: And you've probably figured out that you're probably going to have to help your spouse financially for a time, right?
Counselor [To You]: Well, your spouse has been relying on you for 12 years. We just talked about that a minute ago, correct?
You: Yeah. What's your point?
Counselor [To You]: And you agreed that you both need to be able to survive financially and be able to move on with your lives after this, right?
You: Yes I did, but. . . [trailing off]
Counselor [To You]: You didn't expect that you were going to support your spouse for 12 years and then just get a divorce and the family court would just let you walk away did you?
I mean . . . this is 12 years you've been doing this for your spouse. Doesn't it make sense that the Rhode Island family court is likely to tell you that you'll need to provide some financial support to your spouse for a bit longer so there is time to recover financially?
You: Well I didn't think I'd have to pay . . .
Counselor: But it makes sense, doesn't it? You supported your spouse for 12 years or more and you are the one that makes most of the money. Your spouse needs a little bit of time, probably a couple of years, to adjust to this huge change, get new job skills, work up to a full-time job and perhaps develop skills for another job.
You: Yeah but. . . [thinking]
Counselor: So you need to be prepared to help out for some period of time, it's only fair isn't it?
You: I suppose so.
Counselor: Now you've built up a pretty sizeable retirement account, do I have that down right?
You: Yes . . . I think iw was about $175,000.00 as of the last statement.
Your Spouse: Let's keep in mind that there's some infidelity here.
You: Well you drove me to it. If you weren't so cold and distant I wouldn't have had to find someone who cared and could give me what I needed.
Counselor: Okay . . . let's remember that this isn't to try to resolve all of your personal issues, this divorces mediation session is for us to see what affect all of these things have had on you and how we can work out an agreement for your divorce. The idea is, what can we mutually agree upon so that we can help you move forward with each of your own separate lives after this is all over.
Your Spouse: But that's what this divorce is all about?
Counselor: I can completely understand that you feel that way, and if I didn't know better I'd probably agree with you, yet in the end this is all about a relationship that has broken down and can't be fixed. When that happens people go through a legal divorce proceeding. What we're here about today and what you both hired me to do is to try to see if we can reach some common ground to go your separate ways fairly.
Your Spouse: Well, I want it all.
You: All of it?
Your Spouse: I think it's only fair since you cheated on me.
You: Are you crazy?
Your Spouse: You should have thought of that before finding another bed to sleep in.
Counselor: [Interrupting the squabbling] Are we done?
You and Your Spouse: Done? What are you talking about?
Counselor: We're done, right? You two just want to hurt each other so we're done, right? I've earned my fee and you can go into court and just scream at each other.
You and Your Spouse: No... [you] . No. [your spouse].
Counselor: Then let's look at things here. Is this a fault divorce?
Your Spouse: No it's not. My attorney says I should file based on irreconcilable differences. But I deserve something.
Counselor [To Your Spouse]: Well perhaps that's true yet isn't ALL of it a bit much?
Your Spouse: Not to me.
Counselor [To Your Spouse]: Okay... you say that you were cheated on, right?
Your Spouse: Yes I do.
You: It's not true though!! [very defensively].
Counselor: Okay, I'm not going to agree if it's true or not, but assuming it is true just for the sake of argument, how much did this affair... affect the value of the $175,000 retirement plan?
Your Spouse: How much did it affect the retirement plan?
Your Spouse: It didn't.
Counselor[To Your Spouse]: It didn't affect the retirement account at all?
Your Spouse: No.
Counselor [To Your Spouse]: Then why are you asking for all of it?
Your Spouse: Because I deserve it!!
Counselor [To Your Spouse]: Why?
Your Spouse: Because of the affair?
Counselor: So what you are saying is that if you were originally entitled to 1/2 of the retirement account that you are entitled to the other $87,500 because you were cheated on.
Your Spouse: [Hesitating] Well. . . . yes that's what I'm saying.
You: I did not cheat on you or have any affair!
Counselor: [Interrupting again] . . . You're hurt. I understand that. And maybe that is worth something financially . . . yet it just doesn't seem quite reasonable to ask for the whole retirement account when you even say yourself that the affair didn't hurt the retirement account or your part of it. A judge might give you half or a little more but I don't think a judge would give you all of it.
[Silence as Counselor thinks...]
Counselor [To Your Spouse]: Assuming just for the sake of argument that there was an affair and no damage was done to the retirement account as you've already said, what do you think is reasonable to ask a judge for.
Your Spouse: I don't know. I'm not a judge.
Counselor: Well what does any affair have to do with all the hard work and deposits that are made into a retirement account if you were to get 1/2 of it right off the bat?
Your Spouse: Well it doesn't have anything to do with it when you put it that way.
Counselor [To Your Spouse]: Okay, well we've agreed that you will need some financial help for a bit of time to get on your feet. Keeping that in mind, how much of the retirement plan would you agree to take in order to resolve this issue and get on with your life?
Your Spouse: 75 percent.
You: You are kidding me. For an affair I didn't even have?!?
Counselor [To You]: So that isn't acceptable to you, right?
You: No! That's robbing me.
Counselor [To Your Spouse]: Okay, is there a lesser amount that you might consider.
Your Spouse: Sure. Give me the whole thing and I won't take anything from you to get by until I get on my feet.
Counselor [To You]: What do you think of that?
Your Spouse: Otherwise I'm going to go to court and ask for financial help for the next five (5) years plus 75% of your retirement.
You: [Frustrated] ..... Fine.
Counselor [To You]: Fine to what?
You: [Still Frustrated]: If I don't have to give her any extra financial help then she can have the entire retirement account.
Counselor [To You]: Are you sure? We're going to set this down in stone so this needs to be firm that you absolutely agree to this.
You: Yes... yes... yes... I agree. Let's move on.
In this Rhode Island Divorce mediation setting you can see the interpersonal skills of the Marriage and Family Counselor at work. The mediator tries to work with each party, keeps him or her focused on the issues at hand using excellent personal relationship skills and discusses the various positions without taking the side of either party. Logic and common sense are a part of the dialogue yet he or she does not use legal arguments. The parties are drawn together toward a resolution that each agrees upon that the parties agree will be committed to paper and signed as a resolution of their divorce issues.
The pros of a third-party divorce mediator with counseling and/or psychological skills but who is not law trained are seen mostly in the method used by the mediator/counselor to bring the parties together by agreeing in part with each of their positions, providing understanding and also redirecting the party to another way of thinking about a situation without taking on the role of being an advocate for the other party.
The con of using a third-party divorce mediator who is not law trained is the lack of practical family court experience and knowledge of the process. In this particular case, an attorney acting as a mediator for a divorcing couple would be inclined to call to Your attention that alimony in Rhode Island is rehabilitative in nature, may be very limited in time or scope and is also dependent upon Your income and other assets that may be available from the marital estate. This is something a third-party divorce mediator will not usually undertake since the objective of a mediator in this instance is simply to reach an agreeable result and not necessarily achieve a fair result based upon how a Rhode Island family court judge is likely to rule.
The pros of using a law trained mediator are obviously the cons of the third-party counseling divorce mediator. Law trained mediators (such as lawyers focusing their practice in divorce and family law) bring with them the realistic and practical real world results that come from seeing actual cases before the court. This would seemingly lead to a more equitable result or perhaps a result that is more in accord with a result that you might receive from a Rhode Island Family Court Judge presiding over your divorce. Agreements by law trained mediators are more likely to encompass a whole agreement which is dependent upon each of it's components (i.e. it is a package deal) in order to work as opposed to a bunch of individual elements that are segregated and agreed to one at a time.
The con of using a Rhode Island law trained mediator (i.e. Rhode Island Family Law Mediator) is the lack of any formalized counseling and/or psychological training which helps to facilitate the atmosphere where the parties are drawn together to reach agreement.
If at all possible a Rhode Island law trained mediator who is regularly practices before the Rhode Island Divorce and family court system and also has background in counseling and/or psychology is perhaps the best bet both for reaching an agreement generally and in particular for reaching an agreement that is an accordance what a Rhode Island Family Court judge is likely to order.