Co-Mediation with a Therapist and a Lawyer: Neither Therapy Nor Legal Advice

By: Jeff Fraser

Our experienced co-mediation team, consisting of a therapist/mediator and a lawyer/mediator, help divorcing parties reach separation agreements. These agreements are used to obtain uncontested divorces without adversarial litigation. Some parties are referred by therapists working with one of the parties or with both parties in couples counseling. Some parties are referred by lawyers, or are self-referred. 

Parties considering co-mediation are unsure what to expect in a process that includes a therapist and a lawyer. One or both parties considering co-mediation may have no experience with therapy, and some have had no experience (or a bad experience) with a lawyer. 

We start the process with the explanation that neither therapy nor legal advice will be provided.  Mediation is simply assisted negotiation.  The therapist/mediator is informed by her experience as a mental health professional, but is not providing therapy or couples counseling.  The therapist/mediator, assisting negotiation between parties with strong emotions and familiar patterns of relating as a couple, will no doubt call on her skills as a therapist, though she is not acting as one. The lawyer/mediator knows divorce law, but will not be giving legal advice. The lawyer/mediator will provide neutral information about the divorce process that is readily available to anyone with a computer and an infinite amount of time.

On the other hand, we warn the parties that a session might “look like” couples counseling at times.  We want to normalize and encourage the useful and productive sharing of strong emotions. Some parties are more relaxed knowing that they are not limited to formal and rational arguments supporting their positions. A party sometimes needs to vent a strong emotion such as anger, fear, frustration, or sadness. Such an emotion is often relevant to the negotiation and a necessary and truthful response to a question. For example, a party might be asked by the mediator about his or her reasons for wanting to reside indefinitely in the marital home despite an agreed financial need to sell and acquire cash for both parties. The party might say “I feel frozen. The thought of moving overwhelms me,” or “I contributed so much to this home; I cannot just let it go.” A parent might reveal that his or her resistance to a proposed parenting plan is fueled by anger about the other parent’s infidelity or the other’s continuing relationship with the third party.

We remind parties that, though such venting may be necessary, a second or third vent on the same topic is discouraged. Mediators do not pursue the history of the emotion or explore how the parties might resume life as a happy twosome. Parties often smile or nod with approval when they hear this.

We might ask that the parties acknowledge one party’s strong emotion by creating an agreement that addresses that emotion. Maybe the party who stays in the house, tying up equity for an agreed number of years, is willing to “pay” for this benefit by taking a smaller share of a retirement account.  A party’s anger about the other’s infidelity might be mitigated by an agreement providing some limitation of contact between the parties’ children and the third party romantic interest for a specified time. 

A therapist/mediator is not tasked with saving a relationship, but can sometimes help guide parties with children to more productive systems of communication in their continuing relationship as co-parents.  This contribution adds significant value to the co-mediation process.  A lawyer/mediator has deep experience with all kinds of negotiation, bringing the valuable resource of familiarity with agreements, devices, and problem solving used by hundreds of other parting couples. The lawyer assists the negotiation and promotes an efficient resolution of both the common and unique issues that arise without providing legal advice and maintaining a neutral role in the process. 

Mediation helps people living in an emotionally charged setting redesign their lives in a way so that they are able to move forward. Our co-mediation team leverages their day job skills and experience to meet this challenge.