Mediation: Is it the right solution for you?
If you are anticipating a divorce or paternity matter, you will be asked to consider mediation. It’s simply a process to reach an agreement. It’s not complicated. It’s really not difficult and certainly it’s not life or death, but it has become the best friend of all judges and referees. They encourage mediation for good reason early and often. This brief talk is about why we mediate. In the next one we’ll talk about how to do it well.
There are three good reasons to mediate. The first and most important is you get the best outcome. Think about this with me. Who knows you and your case better than the two of you? Who better to make decisions for you then you? Who knows the kids’ needs, the budget, the assets? You do.
Now, I know the obvious push back here is, “Well, if we could communicate and make good decisions together, we wouldn’t be getting a divorce.” Well, okay, fair comment, but you’re contemplating mediation because you’ve decided to part ways and everyone who’s decided to part ways needs to deal with making decisions. They must put aside the anger or resentment or their hurt feelings and begin to make good business decisions. A decision to divorce creates the need to make decisions together. That’s just the new reality.
Second reason mediation makes sense, you retain control. If you refuse to mediate or mediate poorly, you force the judge to make all of the decisions. Now I’ve come to anticipate the judges and referees will make good decisions in most circumstances when called upon, but you can make the best decisions for you and your family. You can tailor the decision to your exact and unique circumstances. You can be more creative. One positive side effect of a stipulated versus litigated decision is you will have a lesser need to return to court in the future. You can more easily plan ahead for known changes and that’s huge.
The third and final reason that mediation makes sense is the costs are less. Divorce resolved by a stipulation costs far less than one litigated. Certainly less is paid to attorneys and to experts, but the real cost savings are time and anxiety. The court process in a divorce or paternity matter can drag on for over a year. I’ve had some cases that have gone two years. All the while you are in a state of uncertainty. It is best to be done as quickly as you can, and mediating a resolution is vastly quicker than a litigated solution.
One epilogue: While this blog is singing the praises of mediation to get a resolution in a family law matter, it is a bad option when one of you, one of the parties is not willing to act in good faith. If one of you refuses to do the work to get to know the case, the kids, the income, the budgets, the assets, and all these things, that person will not be in a good position to make choices. And certainly if one of you is cynical or evil, wanting to hurt the other, there’s very little chance of success in mediation. But for the vast majority of people who are in this situation, mediation makes sense.
Mediation Next Steps: What to Expect
Okay. You’ve agreed to mediate your case. Now what? What should you expect? What should you do to prepare?
Expectations. The process is really not too complicated. The mediator will start the discussion explaining confidentiality. The mediator will explain their rules of engagement, such things like only one person talks at a time, that kind of thing. And they should explain their fees so you know in advance what you would be expected to pay. Then typically the mediator confirms the agenda of issues to be discussed. Most mediators prefer to start the mediation with all the parties in one room, but circumstances sometimes dictate a separation. Each case is different. Eventually, however, the parties will be asked to go on the record with an offer or a counteroffer of settlement. With that then, the mediator will be able to determine the most important areas of disagreement. It is not uncommon for the parties to have many issues already resolved. A good mediator will build on what is not in controversy and start then addressing the one or two key issues.
Preparation. Good preparation is key. I believe there are two ways to be properly prepared for mediation: prepared with the facts and law, and prepared in your attitude.
Facts and law. You need to know your case. What are the relative incomes? Cost of medical/dental insurance? Childcare? The number of overnights each parent will have the kids? Retirement account balances? Value of all real estate? Mortgage balances? Life insurance cash value? If you want to claim a non-marital interest in an asset, you need to know the numbers. Now none of this is rocket science, but not knowing your numbers and the facts will prevent you from taking a reasonable position on an issue. If you have a unique circumstance, make sure the attorney is looking at the law. You will only be wasting time and money if you stake out a position that is not supported by the facts or law. I once spent over two hours of mediation dealing with a claimed county tax assessment on the homestead, only to find out that it never existed. The attorney, who’s very smart and experienced, didn’t do the research to discover there was no claim against the homestead. That expense was over $2,000 when you add up everyone’s time. Be prepared to mediate.
The other part of preparation, in my opinion, is your attitude. The attitude I suggest to my clients is that mediation is a time to make a fair deal. We are now making business decisions. We’re not trying to sneak out some preferred deal. We’re not trying to change the other party into being a better person. We are looking for reasonable ways to find resolution. If the other side is acting in good faith, we’ll get something done. If they’re acting in bad faith, we’ll learn that pretty quickly, and we’ll shut the process down. It just isn’t worth the time and effort. But until then, while we’re at mediation, we go there to work and find a resolution.
I suggest that if you find yourself engaged in mediation, you make the most of it by preparing on the facts and the law and being prepared to work and find a reasonable result. Mediation does work more often than not.