Thinking about divorce mediation? This is an excellent idea if you and your spouse have the shared goal of uncoupling amicably (or at least are committed to working together to dissolve your marriage in a fair and cooperative way) but have too many issues to resolve on your own.
Working with a good mediator has its perks. Most notably, you can cut down on attorney fees and costs, move at your own pace, protect the privacy of intimate details of your life, and work toward an agreement that meets both of your needs instead of relying on the court model, which is more of a zero-sum game.
If you two of you share children, you may even be able to evolve your relationship into a new type of arrangement. As Belgian relationship therapist and author Esther Perel says, “Divorce is not the end of a family; it’s a reorganization.”
But mediation can have its perils, too. The fact that you’re not in front of a judge doesn’t mean you don’t need to be prepared. Spending a little time getting ready for mediation can put you in a much better position to come out ahead—or at least not too far behind. We’re not talking about taking advantage of your spouse; we’re talking about taking care of yourself. After all, who else is going to do that?
If you choose mediation, consider taking these six steps prior to starting mediation to help you make the most of the process:
1. Meet with a mediation legal coach (a lawyer who is familiar with the mediation process).
Mediation is an opportunity for you and your ex to create an outcome that is guided by but not bound by state law. You decide what is best for you and your family by designing an agreement tailored to your lives and unique situation. A mediator doesn’t represent either of you. Rather, they are invested in shaping an answer that meets your joint and individual goals.
Because the mediator isn’t directly looking out for your best interests, it makes sense to get someone knowledgeable to help. We don’t mean your best friend or mom. We mean someone who knows the game and can help you maximize positive results: a legal coach.
The best legal coach understands the mediation process (and may even be a mediator his or herself). You don’t want someone who is all about litigation — if anything, he or she will frustrate the process and you’ll likely end up with a failed mediation and have to start over from scratch.
In legal coaching, a legal expert advises and directs you to the extent needed. Your coach explains the mediation process; listens to your priorities, intentions, goals, and concerns to help strategize your position for mediation (including developing creative, outside-the-box proposals); helps you understand where you have leverage and exposure; and helps you strategize your response to your spouse’s unreasonable demands.
Legal coaches often require a retainer (a “deposit” of several thousand dollars toward your legal fees). At Hello Divorce, we offer a “pay as you go” service for mediation coaching. You can purchase time in increments of 30 minutes, 1 hour, and 5 hours. That way, you decide how much you want to spend, knowing exactly where you are with finances while keeping an experienced lawyer on demand. We usually recommend you meet one to three times with a legal coach before you start mediation. You may or may not need coaching between mediation sessions.
Regardless of how many times you meet, your legal coach should always review your written settlement agreement before you sign it. Remember, your mediator is not charged with looking out for your best interests. You need to ensure that the agreement not only clearly articulates your understanding of the agreement, but it must also not have unintended consequences.
For example, failure to specify an end date for alimony payments could have unintended financial consequences down the road. Make sure the date that support will end is clearly stated in the agreement. Or, if you and your ex are not ready to decide that now, you should at least agree in writing that you will reserve the issue for determination at a later date.
2. Choose your mediator wisely: Not all mediators are created equal.
Many of our clients meet with us even before they choose a mediator. Why? They tend to like our recommendations (word of mouth is always the best source of referral). But even more importantly, they like to gain a deeper understanding of their case before determining what type of mediator to hire.
There are several types of mediators. The three most popular styles of mediation explained here. After reviewing the relevant laws that apply to your case, you might decide that a mediator who relies almost exclusively on the law to guide parties toward resolution might not be the best fit.
For example, if you have a ton of spousal support exposure as the “breadwinner” of the family or if you and your spouse had a financial arrangement that was different than what the law proscribes (but was never put to writing in a prenuptial or postnuptial agreement), you might want to choose a mediator who spends less time looking at the law and more time working toward a solution that works best with the “facts.” Maybe instead of following the “legal calculation” to determine support, the supported party will agree to less support for a longer period of time, or the parties will agree to live together for a short time post-divorce while each saves up some money.
When interviewing your potential mediator, ask these questions to find the right person:
- What is your style of mediation?
- Will you meet with my spouse and me in the same room, or will you travel between two rooms? Do you ever hold sessions by phone, Zoom, or Skype?
- What does your availability look like? How far out are you scheduling meetings?
- Will you be preparing, filing, and processing our divorce paperwork for us, or will we have to figure that out on our own?
- Do you take a retainer upfront and bill against that, or do you charge a flat fee? If so, how much? And what is your hourly rate?
- What type of mediation training or certification program have you completed?
3. Keep an open mind (with limits), and listen carefully.
We really want people to have a successful outcome in mediation. While this tip technically refers to what to do IN mediation (as opposed to before), it’s a good idea to start thinking about it now. Expect that your ex will say things (intentionally or not) that are hurtful, untrue, or counterproductive. Trust that your mediator will be able to see through unreasonable requests. Take a deep breath when communication heats up. Listen closely and carefully. Do your best to stay calm, and refrain from interrupting or attacking your spouse.
When each party practices good listening skills during mediation, settlement discussions stay on track. It can benefit you to empathize with your ex, even if you don’t agree with certain statements or requests. You may find they become more cooperative when they feel “heard” by you. Practice these communication skills ahead of time so they’re second nature during mediation.
4. Don’t forget about self-care.
It can be daunting to negotiate a complex financial contract or to fight for what you think is best for your kids while ending one of the most important relationships you’ve ever had. That’s what meditation is. The process requires a steep learning curve, especially if you have complicated financial issues, and all sorts of emotions may surface: anger, sorrow, relief, fear, disappointment. Good or bad, emotions are exhausting.
Give yourself a serious break. That may sound difficult considering all of life’s obligations, but it is possible. Meditate for a few minutes. Watch a comedy and laugh your a$$ off. Don’t be so hard on yourself. Maybe you forgot who you are, and now you’re rebuilding yourself. If so, welcome back. To get started on your self-care plan, consider downloading our worksheet. It’s free (hooray) and was developed in partnership with therapist and wellness consultant Annie Wright.
5. Gather the financial information you need ahead of time (or very early in the process).
Assuming you have access to your financial documents, start gathering them now. If your spouse has them, ask for them. If your spouse is interested in mediation, they’re probably not interested in hiding documentation or extending the process. You really can’t go into mediation prepared unless you have a good understanding of what you have and when it was acquired.
For example, if you purchased a home together but your grandmother provided the down payment, you’ll likely want to get that money back. The best way to ask for that is to “prove” that that is in fact what happened with some sort of documentation or another financial statement. It’s not uncommon for people’s memories to become foggy when it comes to facts that could financially hurt them.
In the best-case scenario, you and your spouse would work together to compile documents in a Google Drive folder or Dropbox folder. The following is an abbreviated list of some of the documents you may want to gather in print form or electronically.
- Federal and state tax returns
- Pay stubs
- W-2s and/or 1099s
- Partnerships and other business interest valuations
- Real estate property valuation (it’s okay if you don’t have this yet)
- Kelley Blue Book value on cars and trucks
- Savings, checking, money market, and CD account records
- Nonretirement investment statements for stocks, bonds, secured notes, and mutual funds
- Executive compensation records, including stock options, restricted stock units, or other executive comps
- Retirement account and pension statements
- Annuities, IRAs, and deferred compensation records
- Life insurance policies
- Accounts receivable records and unsecured notes
- Real estate loans
- Credit card and line of credit records
- Evidence of separate property contributions to assets
- Health insurance information
- Evidence of cost of extracurriculars, such as camp and other kid-related expenses
6. Determine your nonnegotiables.
What is it that you really can’t live without? What are you willing to give up in order to keep what you can’t live without? Maybe it’s your house. For example, your house may be your biggest appreciating asset, and you might not want your kids to have to change schools. Think about what you would be willing to give up in exchange for that. (But remember this: kids are resilient. Divorce is not what destroys families; conflict destroys families. If you can avoid conflict to a large extent, you’ve got a high chance of recovering and rebuilding your finances and family.)
Other possible non-negotiables are retirement benefits and financial support. Think about what truly matters to you so you don’t prolong the divorce or incur more fees. Will the (insert item) really matter to you in 90 days? One year? Five years?
Whether you have one or two pesky issues that you and your ex can’t resolve or you would prefer to tackle everything at the same time (with help), mediation may be a great option if you and your spouse are cooperatively uncoupling. You deserve to play a big role in what your life will look like going forward. Mediation allows you to have a voice in the important decisions rather than leaving them up to some judge who knows very little about you (and even less about your needs and wants) and which can have long-term implications. But, whatever route you choose, I truly want you to have a happily ever after … just separately.