Can you ‘queer’ divorce through mediation?

Let me get this off my chest: I don’t believe any of us can ‘queer’ divorce.

I am chatting with someone from the salon, a queer woman who is in the midst of a very contentious divorce. Let's call this person Jessy (not her real name) and her ex Margot (not her ex's name). 

At the very start of the divorce, Jessy was trying to be agreeable. 

Matter of fact, both Jessy and Margot started the divorce process without attorneys and with the intention to eschew court intervention.

In our first conversations Jessy stated, “I believed there was the queer way to get divorced. Keep the court, the cops, the attorneys, and the state out of it.” 

As the divorce process unfolded it took many turns. Most of them unforeseeable. 

After the 5th mediation session, it became very clear to Jess there was not an agreeable energy coming from Margot. Quite the opposite. One illuminating moment came when Margot asked for 50/50 custody of their child. It took Jessy by surprise but she ultimately agreed this would be in their child’s best interest so she moved forward with Margot to work out the parenting plan.  

As they worked on a plan, Jessy wanted to agree to a plan that gave her 3 extra days with their child in the Summer. 

Just 3 extra days.  

To this request Margot said, “Nope”. 

I like to call these moments “the call is coming from inside the house”. Why? This moment is just the breaking of the ice in terms of how disagreeable Margot is likely to get. 

Margot not acquiescing to give 3 extra days to her ex wife is an indication of something much more insidious at the forefront of this person’s ideological map of how the divorce should play out. 

Some people use the term splitting hairs but ultimately it is about how 

Jessy moved forward with mediation, now armed with the knowledge that Margot wanted things split down the middle as close to 50/50 as possible. They worked on a parenting plan about found agreement on most items. But, weeks later, those same agreements were called back up by Margot and turned into a rehashing of already agreed upon points.  

Soon, more mediation sessions found Jessy on the receiving end of a ‘no’ at each mediation session. Margot began to say “no” to all the things: no to the birthday split they had agreed on, no to Jessy getting to see her child a few extra hours after school, no to allowing Jessy right of first refusal. 

Jessy began to worry. Then, a new energy began to enter the mediation session. 

Margot entered the zoom room on the last mediation session and stated something to the effect of “none of this is working for me… I think I’m due more (time, money, etc) and you’re not giving it to me.” 

Only then did Jessy realize what was happening.

Four months of weekly mediation sessions, over $10,000 already paid to the mediator, was slowly seeping down the drain. Within 2 weeks, both Jessy and Margot had attorneys, were not speaking to each other and managing co-parenting through an app.  

At what point in the divorce process do you realize there is no ‘queering divorce’? 

Sure, you may have heard stories of queer people managing to get most if not all of their divorce processed without attorneys and judges. In my estimation, these are not common. Especially if there are children involved. 

In the salon, I hear this type of story on a regular basis. What started off as a reasonable effort to mediate out of court has turned into vitriol, lies, deceit, and a battleground that feels similar to the end of the relationship. 

When someone stalls the mediation process, lies through the mediation process and/or refuses to be flexible in the mediation process there is often something bigger at play. That isn’t what this essay is about but let me offer you this: if you feel there is even a whiff of less than savory feeling floating around, or worse, revenge tactics occurring in the form of a lot of denial and refusal to say ‘yes’ to I sincerely hope you take a step back and reconsider mediation. 

Divorce is weird like that…. a slow leak that turns into a bombshell. 

Divorce is now on the table. 

Perhaps someone cheated, lied, or conducted themselves in an unsavory fashion.

Or, maybe things are just going to shit in a very ‘We just stopped liking each other’ kinda way. 

Once a divorce has begun these feelings tend to stick around and often muddle up the divorce process. 

When the person at the other end of the table harbors horrible thoughts and feelings about you you are not likely to be getting a fair and equitable divorce. The court system is only there to shore up the basic details.

In the state of California, when you use a private mediator (non-court appointed) and things go sideways none of the information within mediation can be used in court unless all parties waive confidentiality. Which, to be clear, I have only heard of information in mediation literally being erased when it didnt work out. 

Mediation is bound by confidentiality so both parties can feel confident they are having a candid and open conversation. 

In the salon there is a very common refrain: “If you love yourself you’d get a lawyer.” 

I didn’t make that up! A certain salon attendee wrote it in the chat one evening and it stuck ever since. 

So, to recap. 

You might want to end mediation and go the attorney / court route:  

• If things start slowing without any specific reason. Like, your ex starts to take a very long time to offer an answer to basic inquiries from the mediator. 

• Ask yourself: “Is this manipulative?” at every stage 

• If your ex is not answering phone calls and emails in a timely manner. How long is too long to wait for an email? 

• If your ex just keeps saying ‘no’ to the smaller requests 

• If you have been working through your divorce in mediation for more than a year 

• If your ex is hiding financial information, holds off on sending bank statements, 401k statements for the mediator to look at 

• If your ex has requested something outrageous… like full legal custody of your shared children. 

• If there is even a hint of retaliation in the way your ex is handling the divorce process

Bottom line: The sooner you get past the queertopia of it all the better. 

You need to protect yourself.