Mediation Tips You Won’t Get From Your Attorney
I love mediation. Mediation is an proven alternative dispute resolution (ADR) process and can help you avoid all the expenses associated with contested divorce, attorneys, and litigation. But if you want to negotiate well, you’re going to need some mediation tips.
But Debra, you may be asking…my spouse is mean, angry and is surely going to create lots of conflict. How could mediation possibly work for me? And why would I even want to try to negotiate on my own?
I understand your hesitation. The idea of spending a few hours or sessions trying to work through parenting or financial agreements with your soon-to-be-ex might sound like torture. But hear me out. Even high-conflict divorces can be mediated successfully if you are prepared and have the right support. Speaking of support…even if you choose to mediate, I would still like you to have an attorney in your back pocket to consult with.
The American Bar Association recognizes more than 10 ADR processes and says,
Mediation is a private process where a neutral third person called a mediator helps the parties discuss and try to resolve the dispute. The parties have the opportunity to describe the issues, discuss their interests, understandings, and feelings; provide each other with information and explore ideas for the resolution of the dispute.
Learn more about mediation here.
MY TOP 5 MEDIATION TIPS
#1 Keep Your Eye on the End Game
Remember, the end goal in divorce is to get to an agreement you can live with. If you try to use the process to punish, hurt, or get revenge on your spouse, the only winners will be your attorneys. Try to go into the process with reasonable expectations for both parenting plans and property division. Unless there have been circumstances the court would find “egregious”, your final agreement will be somewhere near equal/equitable. And no, in most instances, unfortunately, the legal system doesn’t care about porn, affairs, or emotional abuse.
Attorneys don’t want me to tell you this, but some of them actually try to escalate the conflict in your divorce to increase their fees. In their quest to “zealously” represent you, they use your unfamiliarity with the process to encourage you to fight for every little thing. I want your goal to be making informed decisions, not waging all out warfare that leaves your bank account ravaged by legal bills.
You are in control of your own divorce process, so take some time to educate yourself and be your own best advocate – don’t let your attorney drive the bus.
#2 Take Your Time
One of the best parts of hiring a private mediator is that you control the process and the timeline. There is no rush or requirement to settle on an agreement. You can work at your own pace to discuss proposals, ask for more financial documentation, consult with your team, or think about it.
Remember that you can always ask for a break or to meet with the mediator alone (caucus) for a few minutes. Mediations can be completed in person or online and if necessary, can be done with the two of you in separate rooms while the mediator goes back and forth (shuttle mediation).
I recommend a mediation session never last more than 2 hours. That’s about the limit of anyone’s ability to stay focused. Spending 8 or 9 hours hammering out an agreement usually ends up feeling like a police interrogation where you will confess (agree) to anything to get out of the room. Do the work in small, incremental chucks so you can stay emotionally engaged and make good decisions.
#3 Let the Mediator Work
Remember earlier I said that mediation is an alternative dispute resolution process? Mediators are trained neutral facilitators who are experts at de-escalating conflict. Even if you and your spouse haven’t been able to have a civil conversation in months, a good mediator can guide the conversation in such a way that productive work can get done. This mediation tip is really all about trusting the process.
A skilled mediator will not allow one party to dominate the session, won’t permit foul language or accusations, and can help balance emotions in the room. They will work to keep both of you calm and respectful so that the process can continue. Begin your search for a mediator with the Academy of Professional Family Mediators.
Unlike litigation, mediation can help couples learn to communicate in a less charged manner and preserve or improve future co-parenting relationships. Two attorneys posturing back and forth trying to beat each other does not foster communication – it does more damage to an already tenuous relationship.
#4 Understand Your BATNA and WATNA
These crazy acronyms stand for Best and Worst Alternative to a Negotiated Agreement. When you are negotiating, you should be aware of what the possible outcomes are if you fail to settle things in mediation. If a judge were to decide your case, what would the worst case scenario be? What would be best case scenario be? Those are your boundaries.
For example, if you are asking for $3,000/month in spousal support for 10 years and your partner offers $1,000 for 3 years…that’s a lot of room. But let’s say that your consulting attorney tells you that a judge is likely to award you $2,200 – $2,500 for 5 – 7 years, then you know your BATNA is $2,500 for 7 years and your WATNA is $2,200 for 5 years. Work to settle on something within that range and avoid court.
#5 Know Your WN&WTT
This one stands for Wants, Needs, and Willing to Trades. You must have a strategy heading into your negotiation and should know in advance what your priorities are and what you are willing to give up to get those things. This is one of the most important mediation tips I can share.
Once you know everything on the table to be divided, decide what is most and least important to you. There are no winners in divorce and you probably won’t get everything you want (sorry if that’s a shock to you), so think this through ahead of time.
Are you willing to give up some spousal support to get more parenting time? Are you willing to trade some of the 401(k) assets to keep equity in the home? Are you willing to let your partner keep their pension if they take on the majority of the debt?
You don’t need to share this information, you just need to know it so you can make proposals and counter-proposals during the mediation. Because, again, the whole purpose is to come to some sort of agreement you can live with.
Mediation Tips: The Bottom Line
I believe you can mediate, even with a high-conflict person. Honestly, that’s where a divorce coach can be invaluable. I can help you get emotionally ready to go into that room (or Zoom meeting) fully prepared to negotiate and advocate for yourself. And if you don’t understand finances, then my expertise as a CDFA can help guide you through that as well.
Mediation can save time, money and emotional energy that you could be spending on your new life. It may just be worth a try. I’d love to hop on a call and see if coaching can help you feel more confident about mediating your divorce.
Wishing you strength and wisdom,
