Mediation works when it is done right. It can be a fabulous way of reducing animosity, finalizing a divorce quickly and efficiently, keeping your personal life and private details more confidential, saving money, and resolving conflict. Mediation is not right for everyone – it only works when there is no power imbalance, both parties agree to be transparent with finances, each spouse has a serious desire for settlement and neither party has denied access to the children. Benefits of mediation include greater post-divorce stability and shielding your kids from conflict. So what can you do to increase your chances of successfully mediating a family law dispute? We’ve included some tips below to keep in mind when you embark on this process.
1. Commit to being a good listener: Ugh, really? Yes. When spouses in mediation have good listening skills (and refrain from interrupting and attacking), settlement discussions stay on track. Bonus points for empathizing with your ex as you may find that s/he becomes more cooperative when feeling like they’ve been ‘heard.’
2. Choose your consulting lawyer wisely: A lawyer who is not skilled at mediation or who is not supportive of the mediation process can kill your chances of settlement. Most divorce lawyers try to take over and control the entire case. This just sends you into litigation mode. But why do I need a consulting lawyer? A consulting lawyer can give you answers that are specifically tailored to your case. An experienced consulting lawyer can act as a law coach on an as-needed basis. Between sessions, she can clarify your questions and prepare you for negotiations by evaluating your best/worst-case scenarios, help you identify legal claims you may not have known you are entitled to (e.g reimbursements for joint expenses you paid after separation or for a portion of the fair rental/use-value for the property your spouse has had exclusive use of since separation) and coach you in negotiating techniques. Former clients have asked us to predict the range of possible legal outcomes if they were to go to court, the cost of litigation, and review agreements (make sure that what the mediator prepared says what you want it to say!) Another great perk of having a consulting lawyer is that s/he can be ready to jump in should negotiations fail.
3. Don’t panic if your mediator is listening or empathizing with your ex: Your mediator has to understand your spouse in order to assist you to come to a resolution. Just because your mediator is nodding or listening intently does not mean that s/he is taking sides or believing one side more than the other. The best mediators listen to what is important to both of you and then facilitate communication to get you to settlement.
4. Prepare, prepare, prepare: Do your homework. I can’t stress this enough. Aside from meeting with your consulting lawyer, you should make sure that you have all your assets, property, and debts listed. Make sure to have financial statements (present-day, date of separation, and date of marriage especially if you are claiming a separate property interest), at least three years of tax returns, three months of pay stubs, and/or a profit/loss if you are self-employed, and a list of goals [is keeping the house a priority? would you agree to take a little less in support if you had more custodial time? would a buy out of spousal support be better than paying a monthly amount?]. Talk to your mediator about whether an appraisal of key assets should be performed and make sure you have a list of your expenses. You may want to consider meeting with a divorce financial planner to determine what you need to meet your financial goals.
5. Give to get: Yup, you aren’t going to get everything you want. So what might you be willing to give up so that you can get something else that’s more important to you? One wise client once said to me, ‘this car won’t matter to me in 5 years but being able to attend my son’s soccer games will.’ Ask yourself, will this matter to me in a few years? If the answer is no, move on. Keep your emotions in check. Look past resentment that your ex may end up with an appreciating asset (the house) and think about the benefit your children will have in staying in the same school and being near their closest friends. In return, you may end up paying less support (because your spouse has more net disposable income as a result of tax deductions associated with homeownership) or less debt. Be open to creative and potential solutions that you may not have previously considered.
The above tips should assist you in achieving a great outcome after a failed relationship. Hey, there’s got to be a silver lining right? Just remember, do what it takes to walk into mediation prepared – keep your goals in mind and emotions in check. You got this!