Divorce Mediation Considerations

A client recently asked us how to best prepare for their upcoming divorce mediation and what to expect regarding the process.  While every case provides its own unique set of facts and personalities, the following tips are universal.

Prepare and Prioritize

There is nothing that frustrates a mediator more than a party that arrives at a scheduled session without any inclination of how they would like to address certain critical issues such as custody, parenting time, financial support or the division of assets.  While there is surely an “ebb and flow” associated with the negotiation process, a client that has no bearing on how they would like to settle issues only delays and causes more complication to the process.

It is suggested that prior to each mediation session, a client prioritize which issues are most important to them.  Sitting down and placing these thoughts on paper may sound trivial, but it allows parties already involved in a stressful process to keep what is important to them at the top of their list.  Sharing this priority list with the mediator will assist him/her in facilitating a deal that suits each parties’ preferences.

Partial Agreements

It is permissible to have partial agreements in mediation.  For example, it is fairly commonplace for parties to agree on minor issues and place them into a signed written agreement.  By agreeing to such issues in the early stages of the process, the parties gain what we call “settlement momentum”.  Both parties have proven to one another (and the mediator) that they are capable of negotiating in good faith.  This momentum is important to carry into the conversation when the difficult issues arise and a concession may be needed.

Don’t Hesitate To Schedule Additional Sessions

It is important to remember that there is always a possibility of additional mediation sessions.

With the emotional nature of divorce negotiations, not every issue needs to be resolved through the first session.  In order to avoid “burnout”, when possible, try limit your session to half a day.  While every case is unique, often times a productive dialogue falls off sharply after a 4-5 hour time allotment.  Coming back to an additional session often helps cooler minds prevail, likely leading to a settlement in which all parties feel more comfortable.

At the end of each mediation session, it is recommended that an agenda for the next meeting be established.  Often there are documents that need to be reviewed prior to the next meeting.  Identify with specificity what is needed to ensure that everyone is on the same page.  The same applies if either party needs to take action between meetings, such as contacting a bank or realtor.  Having these agreements prior to leaving a session will aid in accountability and commitment of all parties to the process.

Address Problems, Not The Person

While tempting, do not insult your spouse.  Personal attacks alienate the both the mediator and the other party.  Further, when a mediator witnesses such an approach, they will often come to the aid of the party being attacked.  It is never a good idea to make an adversary of the mediator, who is there to help facilitate settlement.

Always remember to address the problem and not the person.  For example, if you believe that your spouse may have anger or substance abuse issues, focus on the need for your child to reside in a peaceful and safe environment.  If your spouse has been less than forthright regarding financial disclosures, it will not benefit you to call them a liar.  Instead, discuss an approach in which the mediator suggests providing you an authorization to speak with various financial institutions, such as banks, to review the documents which you need to reach a financial settlement.

 

Be Mindful Of Concessions  

It is important to make concessions in the presence of the mediator so he/she will see that you are being reasonable.  However, be tactical as to the issue.  You do not want to leave yourself with nowhere to “go” from a negotiation perspective.

It may be wise to state during the mediation that you have conceded on very specific points, but the other party has made no concessions.  Highlighting such occurrences will allow the mediator to go back to the party and highlight your good faith approach and hopefully receive the same from your spouse on an issue that important to you.

If you have any questions about the mediation process or any other family law related issue, please do not hesitate to contact the attorneys of Ulrichsen Rosen & Freed LLC.