What Can Go Wrong in Divorce Mediation



Jessica: If you’re getting divorced, how did you decide which type of divorce to pursue: mediation, collaborative divorce, litigation, something else? With so many choices, it might not always be easy to figure out the best path. A lot of it actually depends on the kind of person your ex is. We know mediation is common in so many divorces. Even if you’re actually moving towards litigation, oftentimes, you’ll have to mediate for part of it. In today’s episode of the Divorce etc… podcast, that’s what we’re talking about: all about who it serves, and even what can go wrong. We’re the exEXPERTS, Jessica and T.H. We help you navigate your divorce and successfully move on with your life. Let’s bring in today’s guest.

T.H.: Hey, everybody, it’s T.H. from exEXPERTS. Gabrielle Hartley is joining us today. You are just going to feel the positive energy from this woman. She is just, I feel like, contagiously happy, even though she’s not. But she makes you think she is, and you just want that to rub off on you. She is a family law attorney and mediator, also the author of Better Apart and The Secret to Getting Along. She is the owner and founder of Hartley Law and Online Mediation. Welcome to our show.

Gabrielle: I’m so excited to be here with you guys.

Jessica: I was mentioning in the intro, for a lot of people, even if their intention isn’t necessarily to just mediate for their divorce, it does crop up and is a part of so many different divorce proceedings. How does that work?

Gabrielle: People come to mediation through different channels. A lot of people will go to court, and after they get their first legal bill and they realize that they’re getting billed by the hour and it’s really adding up and do they really need to approach their divorce like a war, they start to talk to other people and look for other alternatives as to how they can unravel their marriage. People sometimes come to mediation after starting off in litigation. Other times, people know that mediation is going to work. Even if things aren’t particularly smooth between the parties, still they know that it will serve them better to work things out themselves. Maybe there are some details that they’ve gotten an attorney who told them that “A judge is never going to do that” and “A judge isn’t going to order that”. You maintain control of your own future. You maintain control of how the money goes, how the money flows, how the debts are spent, where the kids go when. Instead of giving over your life to the stranger in black robes, you are the director of your own future. And so unless you are married to somebody who absolutely has the idea hell bent to destroy you, mediation is typically a great option.

T.H.: I was speaking with someone today who I’ve been coaching, because we coach people as your girlfriends through it all. You’re not asking your mediator, you’re not asking your lawyer, you need someone where you feel like you’re being heard, where you can talk through things. She is so close to the end of the settlement and divorce, and he wants to sit with her without her lawyer. He has not retained a lawyer. He wants to just sit alone with her, figure it out, and then she can go back to her lawyer who she’s paying to draw up the final settlement, right? She can’t be in a room with him. It’s emotionally extremely difficult. She was under the impression that her only other option was a mediator. But explain to us—I know the answers—but explain to us, first of all, that’s not her only other option, right? She could sit in a room with her lawyer and with him and figure it out. Everybody can do what they want to do. But once a mediator comes into play, how is that going to help her resolve things any more than her current situation with one lawyer?

Gabrielle: If she brings him into her lawyer’s office, there is a natural power dynamic that’s going to put him on the defensive. Defensiveness is the enemy of resolution, right? As soon as you have your shackles up, as soon as you feel like you’re being attacked, you’re going to be disinclined to be agreeable, whereas in a mediation setting, the mediator is neutral and is listening to both sides. In a case like yours that you’re talking about, a mediator may be perfectly willing with the consent of the husband, to maybe listen to what the wife’s lawyer’s point of view is, in case the wife is afraid that she can’t articulate it on her own. Mediation is not one size fits all. Some people, we do settlement conferences where we’re not really just having the parties work things out, but the parties have their lawyers actually in the room. That is sometimes appropriate. But for your particular case, it’d be better for her to come into the mediation having a really firm grasp on the best and worst case scenario at trial and an understanding of what her own boundaries and limits are.

Jessica: I wonder though, I understand the whole if you’re meeting your soon to be ex at their lawyer’s office, that sense of being on the defensive because of whose turf it is. But I mean, inevitably, someone has to feel that way. When T.H. just mentioned this scenario, it makes me feel like he knows that she probably is not able to speak fully and articulately and express herself alone with him. He’s pushing her into a situation to undermine her in her weakness. I feel like a mediator would definitely be an option for her. But what I also wonder Gabrielle is like, could there be a random neutral location? Does it have to be meeting in someone’s office?

Gabrielle: I do all of my mediation, for instance, online. Your client could be on the beach or in her house. He could be in his office or wherever he is. The turf is really your own turf, so you can feel the most at ease. There are increasing numbers of mediators who are working online. Now to answer the point that you were making about her not being able to articulate things for herself, it’s really important that when you’re considering what mediator to use, that you talk to the mediator and you say, “Hey, I feel like I might not be able to articulate for myself.” Find a mediator who’s comfortable in the room before you get started saying, “Hey, I’m going to be evening the playing fields here a bit. I just want you to make sure Mr. Powerful, Miss Powerful, that I’m going to constantly be readjusting,” because what I don’t want is a situation—like I clerked for a judge where I helped to resolve almost a thousand trial ready cases, meaning high conflict, where they’re about to go to trial. I saw a lot of well intended mediation agreements blow up because people didn’t really understand what they were signing on for. When I mediate, I always make sure, unless the people are very clear and they say, “We know our rights. We don’t care. This is what we’re at. Thank you very much, Gabrielle,” if that happens, fine, then I just write up the documents. But most of the time when people come in, I want them to be fully informed, because the educated customer is always the best customer. If you find somebody who can really help you to get really clear, and then go into a space where you can both be heard, you’re just going to have a better outcome than going to your lawyer with an unrepresented person.

Jessica: That’s so important though also. Everyone listening, did you hear what Gabrielle just said? The idea that whatever mediator you find and agree on should be someone who’s going to be able to say, “I’m going to keep recalibrating here. I’m going to make sure to keep going back and forth and making sure that the balance is even to make sure that everybody understands, and that no one is feeling extra vulnerable or weak in this scenario.” We haven’t heard anybody say that before, and that’s crucial.

Gabrielle: It’s very unconventional to be honest, and it’s a particular personality. I’m that way, and there are many others who are that way. But when you just do a plain vanilla mediation training, it’s all about the people being in charge of everything. If you’re the person who feels like you cannot support yourself in mediation, but say your ex is not willing to let you bring your lawyer into the mediation, or for any set of reasons, you’re going to just be in mediation by yourselves, you need to interview mediators probably who are lawyers who really understand the way things work out, and to make sure that yes, they maintain their neutrality, but they’re just very open right up front as to how they practice and how they recalibrate. It’s not every mediator who does that, and not everybody wants that. I will often ask my clients, “Do you want this? Do you want that?” You want a mediator who’s responsive to what your needs are. That’s really important when picking a mediator.

T.H.: And you don’t even know what your needs.

Jessica: Right.

T.H.: You’re just “Hi, Gabrielle. I’m getting a divorce. I’ve been told I should go to mediation. Okay.” That’s it. People don’t know what they don’t know.

Gabrielle: But then do you feel like you’re able to stand up for yourself and articulate what you want with your spouse? Everybody knows that they can or they can’t. I also talk a lot with people about saying “No” or saying “I’m not sure,” instead of being quiet, because being quiet is perceived as acquiescence. That causes a lot of problems for people who are intimidated or bulldozed by their ex. Learning to speak up for yourself is really hard, and mediation is really an opportunity to start to develop skills that you never needed or had, to exercise a new way of being within this new relationship, even if that new way of being is having firmer boundaries and saying we’re only talking on Our Family Wizard or on the Fayr app or something like that. That may be it. It doesn’t mean you’re going to suddenly get along with each other. That’s not necessarily possible for many people.

T.H.: Yeah, no, it definitely wasn’t for me. We had two judges. Then the second one sent us to mediation with a retired judge, which was never going to work out because I had a man who had an agenda for me. Then I had two lawyers who liked to bill us a ton of money. No one was on the side of mediation, and it obviously failed. Now when you go to mediation, I had a lawyer and my ex had his lawyer, and they did sit in the room with us. Then the mediator would speak, and then we would each go into our separate rooms with our lawyers and review what the mediator said, and then come back together again. It was mentally exhausting. How do you manage that when you’re doing this online? I mean, how do you go back and forth between the two people?

Gabrielle: Zoom rooms. I have lots and lots of Zoom rooms. You put the parties in two rooms with their lawyers. What you’re talking about in your situation, that’s more of a settlement conference than mediation. That is usually happening towards the end, or where people are really either—maybe they’re just sent out to mediate, but it’s not necessarily that they chose to be there. But when there’s the lawyers involved, oftentimes, the way I practice is I meet with everybody, then sometimes I have meetings with just the lawyers, then I’ll go in with a lawyer and a client, and the other lawyer and the other client. Because the thing is, in your case particularly, it sounds like you had one of those exes who was really never going to—

T.H.: It was never going to work.

Jessica: Right.

Gabrielle: But most people are not that way. Yes, there are a lot of people that way, but the thing that’s really interesting—I’m starting to smile because I love mediation and settlement. Because really the things we fight about—

Jessica: It’s the silly things.

Gabrielle: Well, it’s not even just that it’s silly, it’s all based on our fear of what we need, what we can’t get, the things we have to have. But when we start to really peel back the layers and think about why we need the things we need, and then once we can access that, then if we can access what the ex’s fears are, and if we can solve their fears, then everything falls into place. That’s the whole magic formula, right, what’s really going on here? Then most of the time, people need to feel heard. People need an emotional release.

T.H.: Of course.

Jessica: Yeah.

T.H.: Right.

Gabrielle: It’s wonderful to watch people who thought they can never resolve things actually come up with solutions. I mean, that’s the magic of my job. That’s why I love doing it so much. It’s never boring. People are so happy when they just saved all the aggravation. They don’t even realize that they saved hundreds of thousands of dollars often.

Jessica: Right, right.

T.H.: We are going to take a quick break here because we want to tell everybody about the exEXPERTS Divorce Rulebook. In addition to all the free resources that we have through the Divorce etc… podcast and on our website, Jessica and I have created a Divorce Rulebook that we would have loved to have had going through our divorces. We built it for you just like we built the exEXPERTS platform. You can find the link in the show notes, and you can also visit You don’t know what you don’t know, but the exEXPERTS do.

Jessica: So, Gabrielle, I want to get back for a second to the whole idea of the online mediation, which I feel like for some people—

T.H.: Well, hang on. I have one question to go back on one second. If you’re doing mediation, what if one person has a lawyer and the other one doesn’t? Is that still going to work? Like, people really just don’t know—

Gabrielle: If you get Better Apart, which is the first book, Better Apart really walks you through everything that you need to know when you’re going into mediation. But your mediator should tell you that you don’t need to have a lawyer, but it’s good to know what your rights are. I’m always encouraging people throughout the process to consult with a lawyer, because once we make decisions, then we start anchoring on them. Then later on, if you find out that you shouldn’t have agreed to something, you have nobody to blame but yourself because you agreed. This is an opportunity to start really asking yourself to show up for yourself in a way you may never have done before.

T.H.: So you recommend having a lawyer then? At least legal—

Gabrielle: I’d recommend learning what your rights are, have a consultation, two consultations, and having your agreement read prior to signing it. I do not suggest that you hire necessarily a litigator who just really wants to blow up the case. There are lawyers who are excellent advocates, who understand the law, who aren’t just litigators by design. You really have to ask your mediator to give you mediation-friendly lawyers, not rubber stampers, but actually lawyers who are going to listen to what you’re saying and respect what you are wanting.

Jessica: I thought though it was somewhat state specific. I thought that in some states, you actually need a lawyer to sign off on whatever you’ve agreed upon in mediation.

Gabrielle: So, you may. I’m a lawyer in Massachusetts and in New York. I can mediate anywhere, and I do mediate actually all over the world as long as you speak English. But if it’s not New York and not Massachusetts, I am not an attorney there. In those places, I do require that you have a lawyer. I can’t do any drafting. That’s completely separate. I only do the full package for New York and Massachusetts, where I do also the writing for you.

Jessica: Okay. And so that is a great segue back into the whole online thing. Because Massachusetts and New York, it’s a little bit of a drive. You’re not right there. It’s not five minutes away. I feel like for some people, the online solution might be amazing, because for some of the reasons we already said: sometimes it’s much harder in person, you’re nervous, and being in your own home and on your own turf can make a difference. I feel like for some people, maybe the online situation might not be as beneficial for them and might not be as ideal for them. How did you start getting into only online mediation? I mean, you have clients, obviously, so it’s working for all of them. But what are the differences that you find from doing it online versus doing it in person?

Gabrielle: A lot of compound questions. Sorry, Jessica.

Jessica: Yes.

Gabrielle: Yeah, online is better not just because you’re in your own home, but you’re also not having to sit in the waiting room with your ex, see them out in the parking lot, going on your way to the restroom. Just sitting in the room with your ex can be so uncomfortable and upsetting. It’s already upsetting enough and uncomfortable enough having to really drill down on the facts of your life as it’s going to unravel. Having things online just creates a little bit of space emotionally for people. I started to do online mediation when I was doing my first book tour in 2019 for Better Apart, and then COVID hit. I was already doing online, and then everybody was learning to do online. It’s really been very popular with a lot of lawyers and with a lot of individuals. My clientele tend to be very busy people. If you have to go to the office, you’re taking the whole day off, right?

Jessica: Well, right, I mean, it’s very convenient timewise.

Gabrielle: It’s also immersive. Everyone has to have a computer, nobody with just a cell phone, but none of my clients just have cell phones. But that could be a problem. I have a giant screen—I always have three computers with everything on different documents. It’s so much better. You can do a screen share, you can do read throughs together, you can do red lines. Today, I spent the day with three different couples going through agreements and marking it up, “Does that look good to you?”, instead of on paper. It’s a bit of a transformation, like a paradigm shift. But I think for a lot of people, it is better. There are people who still read books versus a Kindle, and they want to be in the room. I think the reality of it is you only know what you know. It’s like when people ask how much mediation is going to cost, and I tell them they’ve never been divorced before. It’s not like it’s free. It still costs a lot of money, but it’s so much less than litigation. But they don’t know that, never mind it’s so much less torturous. It’s the same thing with online mediation. Unless you have a natural disinclination to it, I’d say it’s definitely worth trying. Also, in cases where there’s emotional violence, if not physical violence, having a little bit less of a read on each other’s emotions is a good thing.

T.H.: Yeah, absolutely.

Gabrielle: And it’s so much easier to do Zoom rooms. You know, when things get heated, when I was in person, I wasn’t constantly saying, “Okay, let’s go in the other room. Okay, let’s go to the other room.” Here, I say in the beginning, “If I’m feeling like things are getting a little bit heated and it’s not beneficial,” because sometimes it’s good to let people sit in the heat because they learn how to work things out with a little bit of support. But sometimes I might just say, “Okay, I’m opening the rooms,” and everybody’s in these rooms and you can just get through things more smoothly without getting everybody upset.

T.H.: Right, right. So, now what could go wrong, and how to prevent it?

Gabrielle: The biggest thing that can go wrong is that people say yes when they’re not sure. I think that’s one of the biggest problems. That’s not just in divorce, that’s in life, right? Being quiet when you mean no, or when you mean, “I have to think about it,” causes a lot of escalation. That is I think one of the biggest things that goes wrong. I think when people have mediators who are also working hourly versus flat rate, where you can have a certain number of sessions for a certain amount of money, because there’s no calendar making them go back—like if you’re going to court, then you’re accountable to court. If you have plunked down a bunch of money for a certain amount of time, people show up. I mean, I never have people who don’t come to their sessions, because it’s expensive and it’s worth it. Whereas if they’re paying hourly, you might just make excuses, and then six months goes by. Then by the time you come back, who even remembers what you talked about the last time? Then you’re starting all over again.

Jessica: I’m curious, I mean, you’re saying it’s a flat rate—for how many sessions? How long does the average mediated divorce take in terms of sessions?

Gabrielle: The monthly rates for the mediation sessions are flat. Most people are three to six months completely done. Other than then you have to wait for the court. In Brooklyn, for instance, it’s nine months till you’re divorced.

Jessica: Right.

Gabrielle: Most people work with me for three to six months. Sometimes it’s a month because things are mostly all worked out and we just have a couple of sessions. Sometimes it’s a year and a half because they’re high income people, everybody’s unemployed suddenly, the house is falling down, and things need to sort themselves out. Sometimes things take longer because people, by design, they want to try out different parenting plans before they finalize it. But generally, three to six months is very—

Jessica: On a weekly basis? Are you meeting people once a week?

Gabrielle: Every other week. Every other week most of the time. It’s up to you. I mean, you have a certain number of sessions in each package, but every other week, sometimes weekly. If people are really ready to hit the road running, to get things going, then they’ll meet weekly. We’re all wired differently. When we’re under stress, we’re all wired differently. There are some people who we meet, and they really need time off in between. But you can’t take too much time, because like I said, you really need to have a level of accountability in order to build on the last meeting. I spent years as a lawyer going into mediations with clients. It was really interesting to watch the mediators. Oftentimes, they’re restarting things or not remembering what happened the last time, and the whole process gets so prolonged, it costs a lot of money, and it feels not great. It’s like if you have a judge and then the second time you go to court, you have a different judge, and you’re starting all over again.

T.H.: You start all over again every single time you talk to somebody.

Jessica: Yeah.

Gabrielle: When I worked for the judge, he used to have these blitz days where there’d be cases that were sitting on the calendar for so long, and anyone on the calendar for a year and a half would have to come in to clean it out because it was—he’s now the chief administrative judge for the whole state of New York, but he was not letting the cases build up. That really informed my practice actually because of that. Because I figured if people go into court delay so much, imagine if there’s no court who’s actually calling your feet to the pedal or whatever.

T.H.: Right.

Jessica: Right, holding your feet to the fire.

Gabrielle: I should never use analogies. I always mess them up.

Jessica: We got you, we got you. So for everyone listening who’s either thinking about getting divorced, they’re in the process, mediation is going to be a part of it, however big or small, what are your top two tips for people going through a mediation?

Gabrielle: Get yourself educated before you make any agreements at all. If you’re not sure, say “I’m not sure.” A step back is often the best way forward. What I mean by that is, in the mediation, sometimes things look really messy to begin with. Before you come in, you think you had a whole agreement because the two of you were like, “Oh, we don’t need this many sessions. Let’s work it all out.” Then you come in and it seems messier than it did when you were just talking. Trust the process and things will sort themselves out in a way that works best for everybody.

Jessica: I’m such a person who believes in that. I feel like T.H. and I talk about that kind of stuff. You really do have to trust the process. But I know that there are people out there that don’t know the process. They’ve never been through the process, so they’re not comfortable trusting the process.

Gabrielle: It’s also hard. There’s so much anxiety. Think about how you feel. I can remember when my parents were getting divorced, I remember my mother saying to me, “The first year and a half is going to be the hardest.” I remember looking at her thinking like, “What are you talking about?? Like, I was five, right? But I always remembered that. I think it’s a really horribly hard process. It’s like you’re going through a death and a remix up of your whole life and you have to just take it one step at a time. Find somebody who you work with who understands where you’re at, at least well enough.

Jessica: Yeah, agreed, agreed. Well, thank you so much. I mean, this is, I feel, so enlightening. We’ve talked about the different types of divorce out there. Mediation, it’s always talked about, but I don’t know that everyone always explains it on the online thing. That’s so interesting. I would imagine that there’d be a lot of people who would be interested in doing that.

T.H.: Yeah, I mean, people say, “Let’s just mediate,” but they really don’t even know what that means.

Jessica: Right.

T.H.: They really don’t know, “Oh, wait, I’m allowed to have a lawyer at mediation? Oh, wait, how does this work? How does the mediator make sure that I’m defended?” Because that’s what I wanted—I wanted someone to defend my character and my everything. What that mediator was great about was just sticking to the facts, keeping the tone as even as possible. But there are certain people that don’t belong in mediation.

Gabrielle: Absolutely.

T.H.: I didn’t. I went to all the wrong players, all the wrong ones, and it prolonged my process easily six months of just getting it resolved. Just know who your people are. Definitely interview more than one mediator, just like we recommend that you interview more than one lawyer, so that you trust your gut. Generally, when couples hire mediator, do they share on the cost?

Gabrielle: It really depends on their economy. If they’re both working, then they’ll each pay half. If somebody isn’t working—

T.H.: A stay-at-home mom?

Gabrielle: Yeah. Or they’ll just take it from the marital pot. That’s usually not the biggest issue. Usually, people have talked to a few friends and they realize that this is a good path for them. But to your point, it’s not about “Oh, our case is too complicated.” No case is too big or small. I can do absolutely anything. Any lawyer mediator can handle the businesses, the real estate, the kids, the IEPs. Whatever comes at them is all doable. You cannot mediate with somebody who’s completely unreasonable. It doesn’t matter if you guys don’t get along that great—the mediator can hold the dynamic well enough. But if you’re with someone who truly just wants to torture you, don’t waste your time. There’s a reason that I am affiliated with a very aggressive law firm in New York City, because sometimes people call me and they’ll say, “Oh, Gabrielle, I heard you on such and such podcast, I read your book, I really want to work with you.” I’m like, “Great.” Then they start talking and I’m like, “Oh, no, no, no, no, no. This is not good.”

T.H.: “I’m going to send you to a lawyer.” I think that’s really great that you’re honest with them, because I’m sure a lot of people would be like, “Alright, great, let’s go,” and then it was never going to work from the beginning. Make sure you really trust who you’re speaking to. Make sure you have your questions ready.

Gabrielle: Trust your gut. Trust your gut. If it doesn’t feel right, even if I think you can mediate, if you don’t think you can mediate, it’s not going to work. You have to really trust the process. I mean, it’s so easy for us to say, “Oh, trust, trust, trust, trust,” while you’re in the middle of divorce, right? I know you can’t really trust so easily. However, to the extent that you can trust your gut, it’s not going to steer you wrong.

T.H.: I mean, what I wish I knew is that I could have trusted my gut many years before I got the phone call, and I was going to be okay. Everybody out there, you’re going to be okay, because look at us. But thank you so much Gabrielle, because mediation is the trend, and lawyers are settlement based now, and litigation, I feel like is really just not so much of an option anymore for so many people for financial reasons. And so they’re looking for another way. Mediation is a clearly a viable option.

Jessica: So thank you Gabrielle. For everyone listening, if you’ve enjoyed this episode of the Divorce etc… podcast with the exEXPERTS today, let us know by taking a moment to subscribe, rate, and review. That helps us out and helps others going through divorce to find us and the resources they need. For more about Gabrielle Hartley and her practice and her books, check the show notes. Share this episode with anyone you know who can benefit from listening. Have a great day.

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