In My Humble Opinion...

MediYAYtion: Why Your Upcoming Divorce Mediation is a Good Thing (And Instructions on How to Rock It)

5/15/2016

In the context of a divorce, mediation is a good thing. It offers folks a real opportunity to settle their divorce without the acrimony or expense of a trial. Plus, in many counties, it's mandatory--meaning the parties are required to mediate before going to court, anyway.

Why, then, do so many clients have such a negative reaction to the idea? I think this opposition comes from a fear of the unknown. If clients had a better understanding of what mediation involves, then they wouldn't be opposed to the idea. And that is the entire objective of this article: to put the "yay" in mediation.

Here are five reasons to feel good about mediation:

It's waaaay more civilized than trial. A hearing or a trial involves you and your ex both having to go before a judge (and in some cases, a jury). You each get questioned and cross-examined on the witness stand, and you might also have to sit through testimony of friends, neighbors, teachers, doctors and therapists while they say a lot of not so nice stuff about one or the other of you. It's nobody's idea of a good time.

Mediation, on the other hand, is much more civilized than that. It doesn't take place at the courthouse; it takes place in an office--usually your lawyer's office, your soon-to-be ex's lawyer's office or the mediator's office. You and your lawyer will be in one conference room; your ex and his lawyer will be in a different conference room; and the mediator will go back and forth between the two rooms. No witnesses will be called to talk trash about anyone. And you should not have to talk to, or even lay eyes on, your ex at all--except for maybe spotting him in the hall when you're on a restroom run.

No one can force you to agree to anything. Many folks confuse mediation with arbitration. An arbitrator's role is similar to that of a judge. She listens to both sides and makes a decision, which may or may not be binding depending on the kind of arbitration you agreed to.

A mediator does not have the authority to decide anything for the parties. The mediator's role is to help each side move toward the middle and reach an agreement. That means you cannot be forced into anything. But that doesn't mean that you won't feel some pressure from the mediator.

A good divorce mediator has experience in family law and knows how a judge would likely rule on any given issue. So, if one of you is doubling down on an unreasonable position, the mediator will let you know that that position won't fly in court.

You can ask for whatever you want (within reason). It's true that one of the mediator's main jobs is to tell you when you're asking for something you'd never get in court (or refusing to agree to something that a court is going to order, anyway). But it's important to remember that mediation is not court--and therein lies one of the main advantages. In mediation, you are not governed by all of the things you would be governed by if you were in court.

For example, let's say you live in a state where there are statutory limits to whether and how much alimony a judge can order. In mediation, you can still ask for alimony as part of a settlement proposal, regardless of those limits. Your mediator will let you know that you're asking for something that you'd never get in court, and your ex may not agree to it. But then again, if it is part of an overall deal that makes sense--a deal that also includes you giving on other things that are important to him--maybe he will. The mediator will also let you know the climate in the other room. If your ex is 100% opposed to something that you are proposing, you can move on rather than wasting time insisting upon something you have zero chance of getting an agreement on.

It is cheaper and faster in the long run. It's theoretically true that you could settle your case without mediation by simply having the lawyers negotiate back and forth until you reach an agreement. But you'd be surprised at how quickly those rounds of negotiations add up, and how often you end up spending more (and having less to show for it) than you would have if you had just gone to mediation. The combination of having everyone's undivided attention, a ticking clock, a running meter, and a 5:00 p.m. deadline somehow creates the deal making magic necessary to settle.

That said, mediation isn't cheap. You're paying for 8 hours of your lawyer's time, plus half of the mediator's fee. That means you'll want to use the time efficiently and maximize your chances for success. Two important things that can be done to set you up for success are sending a settlement offer to opposing counsel a week or so before mediation, and sending a mediation memo to the mediator a day or two before mediation.

The mediation memo is a short document written by your lawyer that lays out your side. Think of it as the opening statement of mediation. It will provide a little background, highlight the main issues, the major areas of disagreement, the areas where you have flexibility, and points you are stuck on. It will also outline any settlement offers that have been made or received, and attach copies of those. This memo, which is strictly for the mediator's review and not for your ex's lawyer, is a fantastic opportunity to set the stage for a successful mediation.

Once you're in mediation, if either party's lawyer or the mediator determines that there is no reasonable chance of reaching an agreement, she will pull the plug and call it a day. There's no point in everyone sitting around for 8 expensive and tedious hours if there's no decent chance of walking away with a settlement agreement to show for your efforts.

If you don't settle, you didn't waste your time--nor are you for sure going to trial. Even in a mediation that doesn't result in a settlement agreement, progress is typically made on at least some issues. Often the parties continue to build on that progress after mediation. Many times the parties will settle after mediation but before trial. In other words, the work that happens in mediation has value even if it doesn't bear fruit that same day.

Now that you understand why mediation is a good thing, here are some pointers to help increase your chances for success on your big day:

What to bring. There will be long stretches of time when it's just you and your lawyer in your conference room, either analyzing an offer or counter offer from your ex, formulating your own counter offer, or waiting for the other side to respond to your last counter offer. That time is best spent thinking reasonable thoughts and sampling the delicious variety of snack foods that your mediator will have set out on a tray in the middle of the table in your conference room if he has any decency at all. (Fun scientific fact: Calories don't count during mediation.)

I hope for your sake you like your lawyer's personality, because you're going to have a lot of togetherness that day. There's only so much chitchat one can take, so make sure you bring stuff to do when you're all talked out. A fully charged cell phone and an iPad or laptop (and chargers for all of the above, just in case) are must-haves. I've seen clients bring knitting projects or busy work like invitations to address to their upcoming divorce shower to help pass the time and keep them calm. If you're old school, you can even bring an actual book with paper pages and a cover and everything.

But here's one thing you can't bring: guests. Even if you feel like you cannot function without your sister, mom, or best bro, trust me on this one: Mediation is something you need to on your own. You may think these key people will add support--and they might fully intend to; but nine times out of ten their very presence clouds your decision making and risks torpedoing the whole process. So, put on your big girl or big boy pants and suck it up. This is a job for you and your lawyer.

What to wear. Mediation is not as formal as court, but not as casual as, say, going to the gym. Aim for that sweet spot between a Hillary Clinton power suit and yoga attire. Business casual is the name of the game.

It's important to make a good impression on the mediator. She can't make rulings, but she can (and does) form opinions--and those opinions might influence how she sizes up you and your positions. If you're in Daisy Dukes and a halter that says "My blood alcohol level is .0 percent of your business," and your ex is in slacks and a button down shirt, that might affect how seriously the mediator takes your insistence on the importance of your having the exclusive right to make medical, educational, and psychological decisions about your children.

Whatever you wear, make sure every piece of clothing comfortable, all the way down to the shoes on your feet. There's nothing more miserable than being trapped in an uncomfortable outfit while you're cooped up in a small room for 8 hours trying to negotiate your divorce. No amount of yummy snack food can make that feel okay.

How to Act. Mediation is not the departure lounge for your soul-searching journey--you should have taken (and returned from) that trip already. It's important to think through your divorce priorities in advance and arrive at mediation knowing what you can (or can't) live with (or without). It's likewise imperative for you to be clear on your positions on the various issues, but it's equally imperative that you arrive with an open mind. That might sound inconsistent, but it's not.

If you moved out of the house last year and have said all along that your ex can have it because all it is to you is a museum of miserable marital memories, don't show up to mediation demanding to get the house back. If you and your ex have been following a week-on, week-off schedule with the kids since you split up, don't come to mediation demanding that his time be cut in half. Pitching an unreasonable position out of the blue on a hot button issue is a guaranteed way to sabotage the day.

If you describe yourself as a reasonable person, this is exactly the forum for you to walk that talk. There's a difference between holding firm on things that you feel strongly about and being unreasonably stubborn. Mediation is not the time or place for hardball or sucker punches. Compromise is the name of the game.

What to watch out for. Settler's Remorse is a condition that commonly afflicts people immediately after they settle their divorce, causing them to obsess over what they didn't get rather than feeling good about what they did get.

Divorce requires dividing things up. Mediation involves compromise. Compromise requires giving up something in the interest of reaching an agreement. All of that means neither of you will walk away from a mediated settlement feeling like you got everything you wanted. It's mathematically impossible. It helps to be clear on this important truth going in.

The key to post-mediation peace of mind is to keep the whole settlement in perspective rather than hyper-focusing on individual points that didn't end up in your column. Don't view the things that you wanted but didn't get as points that you lost. Instead see them for what they really are: areas in which you succeeded in compromising--a mandatory element in any negotiated mediated settlement.

Statistically speaking, odds are in your favor that your divorce mediation will be successful. Follow my advice, and you'll be doing all you can to ensure it. And that's the key to keeping the "yay!" in mediation.