Marital Mediation May Just Save the Marriage━and the Family Enterprise

A guide to what marital mediation is, isn’t, and how it can be effective

By Doug Baumoel, Samantha Denning, and Arline Kardasis

Estimated read time: 6 to 7 minutes

One of the biggest threats to a family enterprise, especially in its first and second generations, is divorce. With the value of a business concentrated among a few stakeholders, the liquidity demanded in a separation of marital assets can cripple a company and compromise succession. With so much at stake for a family enterprise, unhappily married couples must explore all options to improve their marriage before deciding to divorce.

Marital mediation is broadly defined as negotiating ways to sustain a marriage. Many couples have expressed that if they had known more about this option, they might have given it a shot.

In this article, we’ll discuss what marital mediation involves, explain how it differs from couples therapy and divorce mediation, and identify the kinds of situations for which it may (or may not) be suitable.

What Marital Mediation is Not

The goal of couples therapy is to repair emotional relationships between the spouses and to forge a recommitment to the marriage. During the process, issues such as mutual respect, improved communication, self-awareness, and the psychological characteristics of each party are identified and developed. In addition, pragmatic issues like how the couple will address decision-making, overcome past hurts, and navigate the basic mechanics of living together are addressed.

These are wonderful aspirational goals and couples therapy can be a valuable and effective process, but it simply doesn’t work for everyone. In fact, statistics show that success rates for couples therapy fall roughly in thirds: a third are successful, a third fail, and a third have mixed results. This is by no means a condemnation of couples therapy, as even the third that fails, are  likely to experience new insights and growth. However, couples therapy can be expensive and time-consuming━requiring a significant commitment from both parties for it to be effective.

Additionally, how couples enter into the process can be predictive of its outcome. Very often, one party has pushed for therapy and the other party reluctantly submits, remaining closed off to its benefits. In other cases, one party enters into the therapeutic process to have the therapist ‘take them over, rake them over, or make them over.’ This means they want the therapist to deal with their partner so they don’t have to; they want the therapist to take their side in an argument; or they want the therapist to change their partner. All these starting points reduce the likelihood of success.

Unfortunately, when couples therapy fails, couples see the only options as either tolerating the intolerable or moving forward with separation and/or divorce.

Once divorce is surfaced as an option, it can become difficult for couples to take it off the table.  Too often, divorce is seen as the only option when therapy fails. Divorce mediation aims to offer a way for couples to separate more amicably (and less expensively) than going to court. When shared parenting and other family or professional responsibilities are involved, those connections are less likely to be strained if a couple can negotiate a way to dissolve the marriage without a contentious and public court process. However, when significant wealth, a co-owned business, access to shared family property, or other complications (extreme anger, lack of trust, etc.) are in play, advice from attorneys and tax professionals might be necessary and divorce mediation (alone) may be insufficient.

A recent addition to divorce mediation process options is the use of collaborative law.  Collaborative law is very similar to mediation, but each partner has their own attorney and each attorney is trained in the collaborative process. The attorneys sign an agreement that if they fail to achieve a settlement, they and their firms would be recused from participating in any divorce process in the courts. This aligns the interests of both clients and their advisors while providing the advocacy and knowledge that attorneys can bring to the table.

However, as much as mediation and collaborative law can be excellent options for dealing with divorce, many couples would prefer to find a way to stay married. This is where marital mediation comes in.

Marital Mediation Overview

Marital and divorce mediation actually have a lot in common as they both involve a facilitated negotiation model with similar deliverables. For example, they both require that the parties enter into the process willingly, with a signed agreement to mediate as a first step. No party relinquishes control over an outcome; they remain masters of their own fates throughout the process.

It’s also common for one party to say they prefer to initiate a divorce process while the other wants to work on the relationship. Often this is due to the divorce-leaning partner’s unfamiliarity with the process and potential benefits of marriage mediation. Therefore, it’s important for the mediator to level-set with the couple to try to get buy-in from both. Pre-negotiation of certain behaviors or outcomes might be required to achieve that buy-in.

Like divorce mediation, the end product for marital mediation is usually a documented agreement. In the case of divorce, that agreement is typically filed with the courts. In the case of marital mediation, that agreement might be an informal Memorandum of Understanding or a legally binding contract (perhaps a post-nup), depending on the couple’s needs.

The decision about whether to have a written agreement as a deliverable of the mediation is generally client-driven, with guidance by the mediator. The approach varies from ascertaining what each person wants, even using a written list of possible issues and discussing them until they agree (in writing) to a more open-ended approach.

It’s important to note that the final set of agreements, which come from a mediation, may impact other legally binding documents such as estate planning documents, trusts, investment accounts, shareholders agreements, etc. Coordinating these is essential and it is important to have all the right advisors involved in the implementation of any outcome.

Marital mediation uses mediation techniques to open and improve lines of communication, address the practical elements of their marriage that breed distrust and disharmony, help couples address areas of friction, and develop “guidelines” that focus on the behavioral changes each person will make to lessen future conflict.

Some common areas of conflict that are addressed in marital mediation might include one partner’s “extensive” work-related travel, how caregiving for children or elders is distributed, the alignment of a couple’s priorities around family dinners and leisure time activities, or the management of family finances.

In addition to working together as a couple, each partner can work with the mediator independently. These individual meetings can provide a safe space for digging more deeply into the origins of conflict for each partner and exploring potential solutions. Sometimes, these individual meetings might surface the benefits of one or both of the spouses seeking help from a therapist or even an attorney if there are complex legal issues that need to be better understood.

During marital mediation, the mediator might explore whether a post-nuptial agreement might be a consideration, noting that a “post-nup” would need to be executed with legal requirements. For some, however, the process of improving communication and helping couples gain a deeper understanding of the practical aspects of their relationship is enough of an intervention for the relationship to transform.

Setting expectations for mediation is crucial. At its core, mediation is a dispute resolution process and while it may be therapeutic, it’s not therapy. Feelings for one another may grow as tensions ease, but emotions cannot be negotiated. Each person’s personality, their likes and dislikes, individual values, and personal histories cannot be changed through mediation.

That’s why it’s important to focus on the issues in dispute that can be mediated—certain behaviors, economic interests, decision-making processes, and even intimacy issues can all be negotiated.

How Continuity Can Help

Continuity Family Business Consulting is the leading authority in preventing and managing conflict within family enterprises. This often involves addressing the potential threat that a divorce poses to the well-being of both the business and the family.

We’re here to help whether you decide to call us individually, as a representative of the family, or in a conference call with a small group of stakeholders. Our first call is your opportunity to learn how we work and for us to learn about some of the issues you and your family are facing. This initial consultation is commitment-free, complimentary, educational, and helpful.