Are there telltale signs that mediation is doomed?

[SamwizeGamgee]

Greetings everyone.
I am at the sort of front end of a long overdue divorce. 
We have discussed it, talked to a parenting / family / divorce counselor, and even seen a divorce mediator (one STBX chose).
Right now, STBX took the kids away on far away vacation.  It's probably good for the kids to have something to do this summer. Meanwhile, STBX is off spending money that I don't think we have. That's a hot topic right now. I'm considering closing our joint accounts, but, I will research the legal implications (for example, she could file for temporary spousal support even though we are separated living under the same roof).
STBX also recently said that she can't work on the divorce mediation and she's not ready for our next session.  I agree, but, she's not ready because she's not working on it.
Anyway, I am trying very hard to stick with the advice I got from the book Splitting. I am trying hard to avoid litigation.  But, this mediation isn't moving.  Today, the mediator responded to my description of my concerns about STBX's behavior, and what looks to me like parental alienation. 

The mediator said that she thinks her firm might not be the right fit for this divorce.  She recommended consulting with an attorney, who would move towards litigation presumably.  Adding that if STBX is an unfit mother, that needs to go through court.

I think, as probably many here would be able to see, is that painting what looks like a adequate, caring mother - on the outside - as an abuser, would backfire in court. My consulting attorney and I agree that there's no legal remedy or recourse for my already alienated D19.  As it is, I think I'm pushing the envelope for sounding paranoid. 

I still want to try to work out as much as possible with mediation, but, even from the start, I had my serious reservations and doubts that mediation would go the distance.  I am hesitant to keep hope that mediation will eventually lead to a "better" divorce process or result. I was overjoyed with STBX agreement to 50/50% custody and alternating weeks.  That was the biggest goal in my mind.

So, community, are there telltale signs that mediation will not end well? 

I wouldn't want to go through much more costs, or potentially compromising my legal strategy and strengths in mediation, only to have to run back to the trenches and fight it all over again in court. Waste of time and money.

I am considering preparing documents with my own lawyer, and deliver them to STBX.  Sort of a negotiation and mediation the old fashioned way.

[formflier]

So, community, are there telltale signs that mediation will not end well? 

 

I would think her announcement that she "doesn't have time" (or however she said it)... is the telltale sign you need.

I've read lots of stories over the years and it generally seems to work out that not much happens in any process, until there is pressure or "looming consequences". 

It appears to me they don't "get" that it's real until it's "just about" to happen.

I would think that if you had a mediation where she understood "a deal this week or X will be the process moving forward"...the perhaps something might come of it.

Perhaps..

Best,

FF

[SamwizeGamgee]

Good point.  It's frustrating too, since she's working on her business growth - which serves everyone's best interests.  If that takes time and effort, I shouldn't begrudge it. 

We're working with a mediator she chose, and likes thus far.  But man, we are not moving forward. 

As you point out FF. I think she wants to have her cake and eat it too.  Sure she wants lifetime alimony, freedom, the house, the kids, get rid of me (I'm mostly the devil right now), _and_ wants the stability of me paying the bills and managing the house while she does her things.    As we get close to some mile marker is when she has her crisis (e.g. the morning of our first mediation session disaster). Maybe subconsciously she's afraid to go to the point that means she's actually relinquishing partial custody, having to go through the big transitions, and so forth.  I was in that state for years, I understand the feeling if so. Knowing her, I think she will continue to move the target, change demands, go back, twist what was said, selectively hear it her way, and on.  It's this tendency that if I see it more I'll know will spell the doom for mediations.

I don't know what leverage to hold to get her moving, but I'll look for the motivators.

If I had a crystal ball, I'd look ahead to see what the deal breakers will be in mediation.  I'm willing to cut my losses in mediation (and double my losses in litigation!  --just kidding)

[SamwizeGamgee]

I'm hesitant to push us towards litigation.  Once she gets to grips with the power a blamer can can have in an adversarial legal environment, this could be a [figurative] bloodbath.

[formflier]

I would explicitly raise your concern "to the group".

Her and mediators (anyone else?).

"Hey...I assumed we would be further into the process by now.  What do you guys see as a timeline to complete this?

Don't suggest one..ask.

If there is a lack of answer or "I can't" then switch to "When can we complete this step of the process?"

After evaluating those answers you can sort out when it's time to issue an threat of "after xx date I will assume there is no chance of  resolution in mediation and consider other options."

Best,

FF

[livednlearned]

The mediator said that she thinks her firm might not be the right fit for this divorce.

If a mediator said that to me, I would take it at face value.

Not all mediation firms approach high-conflict the same way. I believe there are even philosophies that distinguish different schools of thought.

Whether you litigate or mediate, you will need someone who feels qualified to help you.

[formflier]

Has this been said to the pwBPD as well? 

Could be an interesting conversation starter "Hey...the firm said xyz  because abc...what does this process look like for you?"

Based on answer you may conclude there is no chance at mediation and skip it entirely or as much as you can.

Best,

FF

[SamwizeGamgee]

If a mediator said that to me, I would take it at face value.

Not all mediation firms approach high-conflict the same way. I believe there are even philosophies that distinguish different schools of thought.

Whether you litigate or mediate, you will need someone who feels qualified to help you.

Boom.

I preach that when someone shows you they are crazy, believe them.  So, this is that line too. 

I'm sure there's plenty of other customers for the mediator out there. Why get stuck with already unhappy "customers" right?
I'd hate to leave her, since, surprisingly to me, I like all of what she says. Assumes 50/50 custody and such. Very practical.   

[SamwizeGamgee]

FF - I like the idea of asking the group about our progress and timeline. That could get things going.  Then there's the main problem for me, which is divining whether this is doomed to fail anyway. 

I'd love to go the mediation route, for many reasons.

I don't feel that mentioning that "[Mediation Firm] may not be a good match for us," because it would reveal insight that I have, and she didn't.  My instinct says to not go with that. At least not now. 

[kells76]

I'd love to go the mediation route, for many reasons.

I don't feel that mentioning that "[Mediation Firm] may not be a good match for us," because it would reveal insight that I have, and she didn't.  My instinct says to not go with that.

Any chance you can get Mediation Firm to send a bland email to you and stbxW: "Thanks for considering us for your mediation. After reviewing the unique needs of your case [or something less... inflammatory? "situation"?], we recommend that you transfer services to Mediation Group ABC, which we highly recommend." Or something like that. Do you think if you bounced that idea by the mediator, she'd help you out -- without having you be the one to tell stbxW?

Upside: don't waste time with a firm that may be in over its head
Upside: no sunk costs with original firm that might induce you to "just keep trying" with them
Upside: could actually be faster to switch NOW versus later when you're back at square 1
Downside: starting over again
Downside: no absolute guarantee that it'll be better

Food for thought...

[zachira]

My cousin is getting divorced from an NPD, and they have managed to use mediation. They were in mediation for at least a couple of years. She says the mediation has worked because her spouse is cheap and did not want to go the more expensive route of going to court, and the mediator got it that the husband is a narcissist. My cousin was willing to give up more than most people would just to get divorced. An agreement has been reached, and the divorce will be finalized when the courts reopen.
I don't know if what I have posted will help, just hope it does.

[SamwizeGamgee]

The how of telling STBX that I / We won't use Firm A isn't the hurdle.  It's the why.  I know I'm already painted black, so I'll end up on the blamed side. But I do honestly want to see what develops in mediation. 

I may have poisoned the well when I expressed my feelings and described STBX's patterns of behavior to the mediator. Now the mediator is (justly) wary. 

The biggest X factor is STBX. I could likely find another mediator either with the skills set, or the desire to take my money who could work out.  It's whether STBX can go the distance and settle in mediation.  She thinks she can, and that I cannot.  But, I'm exhausted and done with convincing her of what I can and can't do, think and don't think, want and don't want.   

[formflier]

I wish I could remember more about SamwizeGamgee's pwBPD.  I certainly don't have any idea if she is "cheap" or "values appearance" or "wants retribution" or...(fill in the blank).

So...I'll pitch this to SG.  

Maybe rank the top three "issues" for her.  Then think about how you can use your knowledge of her, those issues and the way pwBPD go about things to your advantage

Issue 2:  Trying to figure out in advance if something will fail.  Especially something you haven't done before.  

I would suggest shifting your "language" here.  

Perhaps "Let's examine the normal pitfalls and figure out the best chance of success"

Kinda  glass half full way of looking at it (that it will work) vice half empty (doomed).

I suppose I should ask.  Have you and your wife ever done something like this before...some kind of high stakes negotiation where you were on opposite sides?

Best,

FF

[MeandThee29]

I discussed mediation with my lawyer (specialist in high-conflict) at one point, but gosh, I was naive. He was polite, but he said that he was seeing all kinds of red flags indicating that mediation would just be a waste of time and fail. The gist is that you have to be realistic and willing to meet face-to-face in the middle, and he just wasn't seeing that at that point. Time proved that correct as it was a struggle just to get a negotiated agreement via email on what was actually a simple divorce.

He did mention another time that when mediating where he was in charge, he set multiple small deadlines well in advance of the actual date to test the level of resolve and responsiveness. If the other side began missing deadlines for poor reasons, he'd set a firm date where they had to be caught up, and if they didn't, he'd cancel the session.  Of course he made sure that he and his client met the deadlines too.

I completely get that you may be at different stages in your acceptance and grieving. It sounds like you're ready, but she isn't. That's very much the norm in divorce. I attend a divorce support group through my attorney's practice, and the therapist that leads it often talks about this. Stalling and even disappearing isn't uncommon. She talked last night about people who aggressively initiate the process and move quickly through negotiations on the agreement, and then they disappear when it comes time to sign. They don't return calls at any of their phone numbers and don't respond to letters from their attorney. Then suddenly months later, they may be ready to sign, and some just plain disappear and can't be found. Of course some march in just fine and get it done, but some don't.

I suppose you could try, but if she's not going to make the effort to get ready, I would certainly call it off. In my area, there are several mediators who handle high-conflict mediation but they also do all they can to set it up for success.

[formflier]

  It's whether STBX can go the distance and settle in mediation.  She thinks she can, and that I cannot. 

Hmmm...this seems important.  

How has she said/communicated this to you?

Somehow I think this "is it" and that you can use this to your advantage.

How can you let her "have this" and "defeat you" and you come out of this with something acceptable?

Best,

FF

[zachira]

I think she may be projecting how she feels onto you. Likely she feels she cannot go the distance, which could mean many things. If she does feel that way, what do you think it means that she cannot go the distance?

[SamwizeGamgee]

I think she may be projecting how she feels onto you. Likely she feels she cannot go the distance, which could mean many things. If she does feel that way, what do you think it means that she cannot go the distance?

Your statement and FF above that - I think that hits it pretty well.  STBX thinks I'm mad, (vengeful, deceptive, lying, etc.) and cannot settle in mediation. I didn't think about that, but, yes, I've been suspected of hiding assets and property too.  So, maybe, her believing that I can't go the distance in mediation, is her projecting the outcome. 

Good insight.

[formflier]

Or

Her projecting what she is doing...or would do if she could.

Best,

FF

[MeandThee29]

Yes, projection is not uncommon in high-conflict divorces. It's blame shifting.

They aren't willing to settle -> you are unwilling to settle.

They are making roadblocks -> you are making roadblocks.

They are stonewalling/stalling -> you are stonewalling/stalling.

They can't get along with their attorney -> you can't get along with your attorney.

They are unreasonable -> you are unreasonable.

If you focus on your side and let the other side blow up and act badly, you'll be fine. It's painful as you cut that bond even during the process, but ultimately you have to shift your focus. That's what divorce is.

[defogging]

Your statement and FF above that - I think that hits it pretty well.  STBX thinks I'm mad, (vengeful, deceptive, lying, etc.) and cannot settle in mediation. I didn't think about that, but, yes, I've been suspected of hiding assets and property too.  So, maybe, her believing that I can't go the distance in mediation, is her projecting the outcome. 

When I read your initial post it jumped out at me that I didn't think mediation would work, based on what you're describing.  I know if I had tried that with my exPDw it would have gone on forever.  In my case, we both had attorneys and one of the best things about it was that it was her attorney's responsibility to try and reason with her and I did not have to anymore.

This quote I grabbed from you depicts my situation extremely well, too.  My ex had accused me of hiding money, withholding financial information, lying, all that (and much more...but I digress).  In reality, she was the one taking my name off joint accounts and moving money around without my knowledge.  Looking back, the fact that we had deadlines we had to meet and the option of forensic accountants (never used) squashed whatever back and forth might have taken place with a mediator.  Now my lawyer could say to her side "Court says financial documents are due by the 20th, here you go, here is everything we have, now please submit yours".  "If you don't believe us, pay for a forensic accountant".

Lawyers aren't cheap, but I found they really help in moving things along, if that's what you want.  I knew that I was ready to follow through with the divorce when I filed and am very glad I started with an attorney right out of the gate.

[mart555]

Sure she wants lifetime alimony, freedom, the house, the kids, get rid of me (I'm mostly the devil right now), _and_ wants the stability of me paying the bills and managing the house while she does her things.    As we get close to some mile marker is when she has her crisis (e.g. the morning of our first mediation session disaster

Once she realizes that she doesn't get everything she may dysregulate, and that's not pretty.  Her wanting to drag everything seems common.. mine is doing the same thing. 

One of her fear may be that you expose her as a bad mother in front of others..   but that's not an easy battle because they can be quite convincing during their smear campaign.

[mart555]

If you focus on your side and let the other side blow up and act badly, you'll be fine. It's painful as you cut that bond even during the process, but ultimately you have to shift your focus. That's what divorce is.

I agree with this.  It's not easy otherwise because the BPD / NPD tend to spiral down quite a bit.. so we sometimes feel a bit of guilt, especially when kids get thrown in the mix.

[SamwizeGamgee]

Agreed.  The fear of the kids catching flak had kept me married for years.

Meanwhile, I'm composing this:

Dear STBX, we have met with mediators several times. I think we are about 90% agreed on the parenting plan we made with [counselor]. We have the big issues remaining concerning the assets and financials with [firm].  I have done most of the homework she asked, enough to know what we can work with in mediation.  I am ready to move forward and would like to do so soon.  I really like the mediation process when it ends in results.

We have a golden opportunity to have things settled before school starts in fall.
There are other ways to mediate this divorce.  One of which is to have agreements passed between lawyers as we negotiate our issues.

Our priority is, and has been the kids.  Since we are so close to the parenting plan agreement, I want to submit it with signatures to [juvi court] by the end of July. If we cannot get this parenting plan finalized and submitted by then, I will provide you with a copy of a parenting plan for your review, and prepare it for filing.

We could also have all the mediation process done by then.  I don't know how long it will take [firm] to write it up formally, but, the work between us would be mostly done.
_______

Maybe?

I'm truly in a hurry, but, also I think the idea of a deadline was a good one for the whole process.  Rather than tell STBX that mediation isn't working, I can guide her to either make it work, or realize that it's not working because we will see that after the day, STBX is still wrapped around the axel on some topic. (or the mediator fires us for not progressing).

[formflier]

Good!  That's a good first draft.

Cut out half the words and we're probably getting close. 

Best,

FF

[SamwizeGamgee]

Good!  That's a good first draft.

Cut out half the words and we're probably getting close.

FF - where were you with that advice my whole life?  ;)
So much conflict comes from her reading into my words. Keep my pie-hole shut.

[kells76]

Couple of ideas:

Dear STBX, we have met with mediators several times. I think

we are about 90% agreed on the parenting plan we made with [counselor] . We have the big issues, and have decisions remaining concerning the assets and financials with [firm].  I have done most of the homework she asked, enough to know what we can work with in mediation.  I am ready to move forward and would like to do so soon by Day/Date. I really like the mediation process when it ends in results.

We have a golden opportunity to Let's have things settled before school starts in fall,
There are other ways to mediate this divorce.  One of which is to have
either via this mediation process, or by having agreements passed between lawyers as we negotiate our issues.

Our priority is, and has been the kids.  Since we are so close to the parenting plan agreement, I want to submit it with signatures to [juvi court] by the end of July. If we cannot get this parenting plan finalized and submitted by then, I will provide you with a copy of a parenting plan for your review, and prepare it for filing.

We could also have all the mediation process done by then.  I don't know how long it will take [firm] to write it up formally, but, the work between us would be mostly done.

[ForeverDad]

You recall my history, if not then I'll give an outline.  I separated in 2005, police and court involved.  Courts basically ignored her misdeeds and handed her custody and parenting throwing a few bones my way.  Mediation failed, settlement conference failed, on the bright side the custody evaluator tried to be neutral but wrote "if Shared Parenting fails..."  In the final decree I walked out with equal time and a very slight advantage as the parent responsible for school.  For years the obstruction and disparagement (as highlighted in out last court case 2013) continued.  Once I got majority time during the school year to complement the full custody I previously got, her entitlement balloon deflated enough that we never went back to court.  This year our son aged out of the system.  So weird, she acts like the past never occurred.  Well, as long as the past never is mentioned.  And I still keep my emotional and physical distance.

All people with BPD and other acting-out PDs have their own individual traits but I hope this assures you that the future will turn out better than the past and even the current life.

[MeandThee29]

All people with BPD and other acting-out PDs have their own individual traits but I hope this assures you that the future will turn out better than the past and even the current life.

I would sit with my lawyer going over things and say something like this at times, "He's taking me apart."

And he would look over his reading glasses and say, "And you'll be something even better after this. This isn't forever, but you can make good of it."

I paid him a lot, but those little tidbits helped. No custody issues here, but the other side is indeed better.

[Harri]

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Thank you.