She wants to change the mediators

[Enabler]

So... nothing has been resolved but now she's decided that the professional legal mediator needs to be changed as he's not competent. She's scapegoating him for the slow progress of the divorce rather than accepting responsibility for the stop/start nature on the 3yr debacle.

I've asked for comprehensive justification and all I have received back is   

As I have stated, I have received negative feedback regarding ######’s mediation skills from professional legal advisors and do not agree to continue sessions with him.

[GaGrl]

Does that mean you start over? Or can the current mediator provide documentation on what has been agreed upon so far?

What if you agreed that the legal mediator approach isn't working and move to obtaining lawyers?

[Fian]

I am curious what the board thinks the next step should be when one party wants to reject the mediator.  Agree to a new mediator?  Switch to a law based approach where lawyers run the show?

[ForeverDad]

My immediate response - admittedly not necessarily the best - is that you don't want a 3 year ordeal replaced by another 3 year ordeal that may be even worse than the current attempt if she finds a more compliant or gullible mediator.  At the least, letting her have another bite of the apple with another mediator could delay it even more.

It was predictable that she would blame the mediator as bad.  Only a bad mediator would have been perceived as good because she would have been getting things her way.

As Skip noted:

At the moment the rhetorical conversation seems to be around a mortgage we have expiring at the end of Nov... like proper expiring expiring not just off the 'deal' period. If we don't come up with a solution it goes into a default situation. The Bank's expiry team refuse to give us an extension unless one of two things are met... a court date OR the house is on the market.

Perhaps you need to give her a choice as I gave mine.  (Maybe not as bluntly as I did but just as firmly.)  On trial morning, two years into our divorce, she was finally ready to settle.  I had a short list of terms, actually just one, I would become the parent responsible for schooling in a settlement or else we would start the trial.  (I later found out her lawyer had advised her she would lose in a trial.)

[GaGrl]

ForeverDad, I think you are correct in that changing mediators will only prolong the (painful) process.

The STBX is not getting the answers and positional support she wants. She is probably not ready to accept that her wants are not reasonable, so she wants to change mediators, which can turn into mediator-shopping.

NewLife, how long do you think the situation should continue with your STBX holding to an unreasonable position that you know you won't agree to? Are you willing to wait for her epiphany?

[mart555]

NewLife, how long do you think the situation should continue with your STBX holding to an unreasonable position that you know you won't agree to? Are you willing to wait for her epiphany?

Is the epiphany for an unreasonable position something that can happen with a BPD?

[GaGrl]

Is the epiphany for an unreasonable position something that can happen with a BPD?

I don't know. ForeverDad's ex had her epiphany almost on the courthouse steps (actually in the building), as did my former co-worker.

My H had to tell his STBX that he was setting a court date for her to have a conversation with her lawyer in which she actually listened. The settlement after that took a week.

[ForeverDad]

Many of our divorces do end in some sort of a settlement.  Mine did, though it took slogging through some two years of a divorce process to get to that trial date where she had to finally face reality.  It's a long marathon to get there.  And usually it is an important looming court hearing or trial that puts you over the finish line.  I really don't know if you'd call it an epiphany.  In my case, she had a favorable temporary court order and and it was to her benefit to keep it going as long as she could, until she had to face the reality of a trial.

[Enabler]

Thanks guys and gals,

The mediators role is to neutrally guide us through the divorce process. It's pitched as a friendly way of achieving the divorce in a collaborative fashion. For me the mediation process (1x mediator, 1x New-Life, 1x STBX in attendance) requires the following from each individual in the process:

Preparation - Being prepared to do the work to up-skill ourselves on areas we lack knowledge. Attending each meeting being informed or at least willing to be informed of the matters in hand.

Ability to make choices - Being prepared to make choices about 'what I want' and 'what I want my life to look like'... however ridiculous. At least with a firm agenda of what each individual wants there is a 'market' with which compromise could be plausible.

Willingness to honour the compromises that are reached - It's far far too easy for a 3rd party lawyer to convince each individual they could 'get more'. It takes strength and commitment to resist the temptation to tear up the non-legally binding agreement BEFORE it's signed and submitted as a court order and thus becomes binding.

A friend of mine is a commercial litigation lawyer and in his experience it's extremely rare for clients to reject a mediator mid way through a course of mediation. Yes mediation can fail and thus the case is taken to court, but almost never is the mediator rejected unless a conflict of interest is revealed. He described it as a jockey changing horses mid race.

I have replied asking for concrete evidence of the mediators failings.

New-Life

[Fian]

Do you think you can talk her back into using the mediator?  You are asking her for something that she isn't going to give you.  She doesn't like the mediator, and is now unwilling to work with him more.  So assuming she sticks to her position, what is your next step?

[Skip]

I tend to agree with the others that your mediation is blown.  You have been in the process for close to a year without a twinkle of progress. Without taking sides, I think its fair to say that neither of you approached it with the goodwill, skill or motivations that are need to be in place to make mediation work. Mediation doesn't work for many couples. Especially when communication, respect, and trust has completely broken down.

I have replied asking for concrete evidence of the mediators failings

Why not agree with her, New-Life. This has then benefit of you both finally agreeing to something (after years) and it allows you both to save face by writing off the failed mediators to the mediator - rather than blaming each other.

I'd step it up in the next go at.

Collaborative divorce involves both parties and their respective solicitors signing up at the start to work on a collaborative process. This means they agree to work to a solution without going to court. Four-way meetings can then take place with both parties having their lawyer present. The key difference between mediation and collaboration (in the UK) is this offers legal representation in discussions.

What is happening with your mortgage balloon payment due at the end of November?

[Enabler]

As things stand at the moment STBXW wants to stay in a mediator + W + New-Life arrangement, just a different person.

At what point do I say “no more bed hopping?”, now or after our 5th mediator? I’m inclined to push back on the reasoning for this one.

Mortgage issue is still an issue although coming to a head with even W conceding we’re running out of road. In my last response I asked for times when we could ring the bank together and apply for a replacement mortgage which I have little doubt of our ability to secure.

[ForeverDad]

What Skip wrote.  You can agree with her that the mediator didn't work out.  However you then state you don't believe any other mediator will succeed either.  So it's either this mediator or lacking real progress soon then some level of divorce proceeding.

Typically once she is served a court hearing date is set.  You won't agree to continue it to another date unless there is demonstrable progress in the meantime.

You need some teeth now.  Appeasing or giving in will only continue the delays.  Sorry.  It's time you are "the brick wall versus her irresistible/manipulative force".  It's called Boundaries.*  From now on you only agree to delays when there is real evidence the delays are to help progress, not delay it.

* Your stbEx surely hates and sabotages boundaries.  A boundary to have better likelihood of success is where the boundary is your response.  I like to describe a boundary with this format, "If you do or don't do ____ then I will do or not do ____."

That's what we're suggesting now.  "Mediation didn't succeed.  I don't see another mediator being any better than this one.  So the next step is to move to some sort of divorce with court involved.  If we take the collaborative method and it does not make progress then it goes to court and court will ensure things move along.  Either way, things will move forward."  That's one way to state your Boundary.

[GaGrl]

As things stand at the moment STBXW wants to stay in a mediator + W + New-Life arrangement, just a different person.

At what point do I say “no more bed hopping?”, now or after our 5th mediator? I’m inclined to push back on the reasoning for this one.

Now.

The goal of mediation is to facilitate an agreement between the two parties (I am a registered mediator but worked in corporate HR.) It is not the goal or the job of the mediator to be "fair." However, a good mediator will provide info on guidelines and what courts typically rule.

 Changing mediators thinking that it will result in a better outcome is magical thinking. Her view of an equitable settlement is magical thinking. Her belief that her affair with OM could stay a secret from the daughters was and continues to be magical thinking.

It seems the goal needs to be pulling her out of magical thinking before any progress can be made. Changing mediators won't do that.

[formflier]

I question whether or not it is reasonable to believe this can be settled outside court or at very least the courthouse steps.

There are tons of stories on here where an "emotional thinker" (pwBPD) faced the reality of a judge ruling and decided to settle. 

No way to know if that will happen in your case...but it seems safe to say that a "reasonable" path to resolution is unlikely to be found.

I pulled a few quotes that really stood out to me.

Best,

FF

She believes I am demonic and have been controlling what she thinks for decades. The likelihood of her aligning herself with my view based on my sales pitch or my words is very remote. I will work with whatever she comes back with and I'll find a route through.

Understand that logic doesn't figure into the mindset of a person with BPD. 
 

with a disordered person the path to resolution will be bumpy.   it won't make logical sense.  it won't involve understanding or clarity.    it doesn't work that way.

[Enabler]

Me

Please could you provide specifics about the negative feedback you have received about XXXXXX. My experience of his professional capability has thus far been as expected if not above expected. It strikes me that there could be a possible conflict of interest between Solicitors and professional mediators, so I’m somewhat sceptical about making sudden change without some concrete evidence.

Her response:

I will not be providing specifics and am clear in my decision to not return to XXXXXX. 

[GaGrl]

All-righty then.

Your move.

[Enabler]

In addition to this her solution to the mortgage issue is that I apply for a mortgage under single applicant rather than joint application. I hate this idea:

On first glance I do not like this solution at all. Being sole name on a liability (a mortgage) vs joint names on an asset (the house) without legal protection of a financial agreement is utterly unappetising. I do not understand what your issue is with regards to entering into another joint mortgage with me as a solution to this problem. It make sense that whilst you are joint beneficiary of an asset you should have joint liability to the debt associated with it. There needs to be some linkage between the 2 or a formalised agreement in place detailing out disproportionate claims on the properties cash proceeds.

[Enabler]

Your move.

I am confused how she believes that her actions are both reasonable and rational (Maybe she doesn't and/or maybe she is being encouraged to play games by her lawyer). If she cannot string together some semblance of reasonable decision making skills whilst having the time to contemplate and take council on her response on email, what hope does she have in any further 1 on 1 legal mediation?

[formflier]

I would advise you spend less time trying to "understand" and more time "accepting" that she is where she is...(and is unlikely to change).

Does that help clarify YOUR path forward?

Best,

FF

[Skip]

What is your goal?

By all measures, your STBX doesn't have the legal or business skills to represent herself in a divorce settlement. She is floundering.

You are in a "learn as you go" mode and shunning all convention in a system that is driven by convention. And politely, your negotiation skills are not bottom line oriented.

If we take BPD out of the equation, this still would not be working. It might be less emotional, but the dynamics needed aren't in place.

Shifting off the legal for a moment...

Sometimes we are so desperate to hold on to a relationship that we will cling to dysfunction rather than let go. We see it on the board all the time. If this was just a dissolution of a marriage, I think it would all be much more straight forward. It really seems that there are other agendas at play, consciously or subconsciously. I will give examples rather than speculate. The desire to win. The desire to punish. The desire to outwit. The desire to teach a lesson. The desire for moral, intellectual superiority (codependency). Vindication. Etc.

I will not be providing specifics and am clear in my decision to not return to XXXXXX.

It was a bad play on your part and this response should have been expected. All she did was dig her heels in. Honestly, if I was her, I would have rejected your request. At best its condescending.

In a straight negotiation, one keeps the ball in motion. For example. "If you want to change things because its not working, then I'd like lets change the process too and mediate with collaborative lawyers attending. Fair. I think you are right."

A request that the other party provide evidence to support their thinking is backward motion.

[Skip]

I am confused how she believes that her actions are both reasonable and rational

Reading people is not your best skill. Some people are good at it. A lot of us here, aren't the best. Getting help with that is a reason to be here.

[Enabler]

I am trying to ensure that my life after is as prosperous as possible. She is attempting to switch from a low cost option that could work with her effort and prioritisation, to a more costly option with limited scope for improvement.

The maths...

Current mediator = £100 per person per hour +VAT... = £480 for a 2 hour session.

Proposed mediator = £390 per hour +VAT... = £936 for a 2 hour session (as much scope for success as current mediation)

Skips suggestion = £390 per hour +VAT for suggested mediator... +2x £305 per hour solicitor + VAT... = £2400 for a 2 hour session.

Since background work is being completed at least on my W's side one might suggest that's a sunk cost on all options. Currently I have limited needs must contact with my L so one would imagine she would need 2+ Hours work to prepare £305 + VAT an hour, so an additional £732.

Skip, your suggestion may well be where the ball ends but batting the ball straight there strikes me as hating money a little... especially when there seems to be no justification given for the change of tack to a more costly solution.

[Enabler]

Reading people is not your best skill. Some people are good at it. A lot of us here, aren't the best. Getting help with that is a reason to be here.

I have shared my W's emails with quite a few people in an attempt to find her angle... I must know a lot of people who are also poor at reading people. Since none of them have managed to see a reasonable or rational reason for the decision.

[formflier]

  Since none of them have managed to see a reasonable or rational reason for the decision.

I agree there is not an apparent reasonable or rational reason for the decision.

I'm curious why you expect to find one, since it doesn't appear she is a reasonable or rational person.

Best,

FF

[Skip]

Since none of them have managed to see a reasonable or rational reason for the decision.

I could think of some things...
Nothing has been accomplished in a year of mediation...
She is lost and doesn't know what to do or how to do it (as there is no one helping her)...

£2400 for a 2 hour session.

How much have you budgeted for getting this divorce done?  Best case, worst case?

[GaGrl]

How many sessions would you be sill my to try before moving to collaborative divorce? And then how many collaborative negotiation sessions would you be willing to attend before moving to contested divorce? In addition to what you have budgeted money-wise for a mediated settlement, what is your goal or bottom line time-wise?

Many people on this board, over the 12 years I've been on, have spent $100,000+ on a divorce that went on forever.

[ForeverDad]

The Best Predictor of Future Behavior Is … Past Behavior

We see her behavior as you've described.  We see your behavior.  Going down the same paths until now didn't work and and won't work either going forward.  So you have to change up something.  Can you Accept that you have to let some things go and focus on what you can more likely gain success?

She wants you to refinance the house in your name only?  Is she willing to sign over to you a quit claim deed so she has no ownership of the property?  If not, then you can't do what she wants.

Imagine this scenario:  You cave to her stubborn refusal and refinance the jointly owned house in your name only.  Later in the divorce negotiations she ends up getting the house.  The agreement states (1) you give her a quit claim deed and (2) she refinances.  You comply with the requirement to give her a quit claim deed.  However, she fails to apply for a mortgage in her name only, or she applies and fails to get a mortgage approved.  Where do you stand?  You don't own the house and you are liable for the next 15-30 years if she fails to pay the mortgage (or fails to have insurance and there's a loss on the property) on a house you don't own and in which you don't reside.

Even if you end up with the house, what if she refuses to comply and sign over to you a quit claim deed?  Sadly, courts are willing to make orders or approve filed settlements but they're surprising weak in enforcing their orders.

What Leverage for compliance can you include in any settlement or proposed court order?  One of the easiest to get past a judge is where there is a structured set of actions.  For example, if you owe her some funds or assets of any type, you will be required to release them to her, perhaps in stages, based on her progress in complying with her part of the terms.  One piece might be something like this... "New-Life will place in escrow with his lawyer $XXXX which will be delivered to Ex within one week of Ex's delivering a signed quit claim to the property to his lawyer and vacating the property."  Your leverage is the chunk of cash (or whatever) that she wants but can't get until she complies.  Your stbEx may be disordered, illogical and a mess, but most pwBPD know the value of money.

[Fian]

I am trying to ensure that my life after is as prosperous as possible. She is attempting to switch from a low cost option that could work with her effort and prioritisation, to a more costly option with limited scope for improvement.

The maths...

Current mediator = £100 per person per hour +VAT... = £480 for a 2 hour session.

Proposed mediator = £390 per hour +VAT... = £936 for a 2 hour session (as much scope for success as current mediation)

Skips suggestion = £390 per hour +VAT for suggested mediator... +2x £305 per hour solicitor + VAT... = £2400 for a 2 hour session.

Since background work is being completed at least on my W's side one might suggest that's a sunk cost on all options. Currently I have limited needs must contact with my L so one would imagine she would need 2+ Hours work to prepare £305 + VAT an hour, so an additional £732.

Skip, your suggestion may well be where the ball ends but batting the ball straight there strikes me as hating money a little... especially when there seems to be no justification given for the change of tack to a more costly solution.

So let's consider the options:
1.  No mediator.  You refuse to accept a new mediator.  Ball is in her court.  She can go direct to legal action or stay in status quo.  How does status quo look to you?  It sounds like retaining your current home might be difficult.

2.  Go with her mediator that costs more.  Your prediction is that route will just cost more but not result in success.

3.  Go with mediator and lawyer.  This costs a lot more, but do you agree it is more likely to result in success?

4.  Go directly to court.  Do you view this as a better path than the 3 above?

5.  Magical thinking - get her to change her mind.  I put this one in, as it is the route you have currently chosen, but can you agree that it is unlikely to be a successful solution?

[Enabler]

So let's consider the options:
1.  No mediator.  You refuse to accept a new mediator.  Ball is in her court.  She can go direct to legal action or stay in status quo.  How does status quo look to you?  It sounds like retaining your current home might be difficult.

2.  Go with her mediator that costs more.  Your prediction is that route will just cost more but not result in success.

3.  Go with mediator and lawyer.  This costs a lot more, but do you agree it is more likely to result in success?

4.  Go directly to court.  Do you view this as a better path than the 3 above?

5.  Magical thinking - get her to change her mind.  I put this one in, as it is the route you have currently chosen, but can you agree that it is unlikely to be a successful solution?

I like bullet point so this seems like a good response to get to grips with my thoughts here.

1 - This is a game of chicken. That doesn't sound wise nor does it demonstrate reasonable behaviour on my part either and just plays into the hands of the courts.

2 - Going to more costly mediator without solving the issues I suspect are at the core of her decision (using excuses about lawyers incompetence), is just likely to cost more and achieve the same outcome as current mediator would have i.e. her confused, her scared, her overwhelmed, her unwilling to make choices about what she wants. In many ways the reason why I am pushing back and asking for detail on her reasoning "Mediator bad" is because I suspect that it is not true and there's 'other reasons' such as "I don't trust the mediator, the mediator is on your side, the mediator can no longer be impartial given he knows about my affair, I tried to get mediator onside and he didn't tell you off for taking your time to respond to things".

3 - I agree this is likely to yield the quickest result albeit I'm less concerned by speed since I'm sitting pretty in a house I'd like to keep (the matrimonial house), accruing savings each month, embedding my position as 50/50 parent each month. From a cost perspective I get 10 hours of the current mediators time for every 2 hours I get with the all guns blazing mediation and 5 hours with the mid-range variety.

4 - I certainly do not see this as preferable to 1-3

5 - I'll assume you mean change her mind about ditching mediators not change her mind about the D. I'm not sure I thought she would change her mind, but it was reasonable for me to since she didn't provide any reasonable reasons for her decision and nor is it reasonable to request such a change of tact without evidence of gross misconduct (which she has failed to demonstrate).

My best/worst case scenarios for cost were £5k-£120k. I suspect we're currently on £5k already but I don't know how much W has spent. 

I would like to add 2 additional options:

6 - We mediate over email. She takes council where she feels she needs to as do I. (she's already rejected this proposal, however I don't agree with her since mediation on principles and agreements are better where each of us can take council and refer to information out of a 1 to 1 environment where responses are required immediately)

. I agree that some of the details can be discussed between ourselves (such as the below) but mediation on principles and agreements needs to be through a third party.

7 -  I deal directly with her lawyer and seek council on things I am not sure of. i.e. I speak to someone able and equipped to represent her on a level playing field. The risk is clearly that her lawyer knows the law considerably better than me and will attempt to trip me up rather than get a reasonable deal over the line. This means I do the grunt work in answering admin questions and spend money on advice only. I have done this already with regards to my proposal which I've tabled albeit not directly with her lawyer.

My preference is option 6. I would guess this is the least emotionally intense option as well...  for both of us.