In the first post about mediation, we discussed what mediation actually IS and what it IS NOT. Now you know the basics, the logical follow up is what TO DO and what NOT TO DO during an actual mediation in progress. (This needed its own section, seriously.)
- DO get a mediation date. A good mediator books 30—60 days in advance.
- DO meet with your attorney in advance and put together an offer (or offers) with which you are comfortable; this does not need to be Moby Dick–a spreadsheet or general outline of topics and what you are willing to give on and what is a deal breaker does the job. The key here in this step is to work with your attorney to look at different settlement scenarios as well as determine what your “bottom-line” offer would be at mediation. While it does not have to cover every single detail, you still need it, if only to organize for yourself and your lawyer to start on the same page.
- DO be prepared with a brief statement for the mediator. You will not be sitting together in the same space as your soon to be ex and his or her lawyer; different rooms with your own attorney and mediator back and forth to each party separately is the protocol. From the mediator’s POV, what is likely most helpful is your answer to the following: “What am I going to hear in the other room about you?” Your response is not to persuade, defend, or convince; the mediator is NOT the judge of your case. Your statement provides background, and context helps paint a complete picture.That said, do stay on point. The mediator does not need to know what you ate on your honeymoon. Some details will be more important than others. Money can be fairly straightforward (provided you know the numbers and have in your possession financial statements necessary to reach an agreement); with complex issue like child custody, a mediator will take ample time to understand the nuances.
- DO have a checklist that you and your lawyer agree upon should you come to decisions in mediation that make a settlement forthcoming. For instance, if you don’t want a date to spend the night with your ex if your kids are there, it’s on the checklist. This goes for all those fun kid activities and respective obligations, including stipulations for future mileposts. This could be a car, school, dating, camps, taxes, and college, even if your child currently eats mashed peas from his highchair. Better to address questions and make decisions included in your written agreement to save yourself the headache for what seems like a long time away. As everyone always says, they will be graduating in a blink. The last thing you want to do at graduation is haggle over who’s buying sheets for the dorm room.
- Perhaps this isn’t a do, but more of a plug for the mediator/mediation process: Sometimes mediators will hint at what a judge would likely do in court. Of course judges are variable and mediators possess no crystal ball; still, past experience with judges may make the mediator aware of proclivities or tendencies. So and so rarely orders 50/50 on custody or this one orders an evaluation for everyone in the family. Most importantly, a mediator can remind you (and your spouse) of the numerous customizations available in negotiating now; choices you won’t have your day in court.
THE DO NOT’S:
- DO NOT wait to mediation to figure out financials. It is not a good use of anyone’s expensive mediation time on hold with your bank or credit card company. Know whose name is on what—the title, the deed. Know your debts. Know what you are willing to give up—will you move to an apartment and sell the house if your spouse agrees to 50/50 college? Will you pay for gas and insurance if your ex buys the car? What matters to one couple may be of little consequence to another; these are not easy matters. I am surprised, though, how often otherwise smart people will show up to mediation with their head in the sand because it was too painful to acknowledge their bank statement.
- DO NOT treat the mediator like a bestie. They are, of course, good listeners and there to help, and spilling can be tempting, especially if they’re nodding sympathetically. But there is some game in this; don’t tell the mediator everything, nor show your hand about where you will cave. Success for the mediator is settling the case; that is what they are there to accomplish. So be careful in your wording: “I might consider…” is fine, but “I’ll agree to sell, but don’t tell her!” is probably not your best strategy.
- DO NOT forget your lawyer. While the mediator is not there to take sides, your lawyer is specifically present to garner the best deal possible for YOU. It is perfectly appropriate to ask the mediator to leave the room in order to give you time with counsel to discuss options. Take private time with your lawyer to discuss options frankly and strategize. It’s not cheating. It’s mediating well.
- DO NOT start out with your bottom line: Of course you don’t want to be there, and definitely not all day. It is a painful process, you’re paying for it—literally, figuratively–and God do you want to be done. But this is the rest of your life, man! Don’t get too focused on the finish line when you still have a few more laps. It is almost impossible to move backward from a number in settlement. Think about what you put out there. If 100 is as high as you’ll go, don’t start at 99. Give yourself room, while striving to be reasonable about what actually costs you. Again, your lawyer can help. Brainstorm before–or take time alone when the mediator is across the hall—decide some numbers you are willing to start with and under what conditions.
Mediation is not fun. It’s expensive. It doesn’t always work. But usually, it does. Of the 93% of couples who do NOT end up in court, the majority settle in mediation. And a mediated settlement is binding; as bulletproof as you can get short of a court order. But DON’T forget: no takebacks after signing!
About the Author
Jonathan James is an associate attorney at Hance Law Group who exclusively handles family law matters, and has worked on cases ranging from paternity & custody disputes to complex property divorces. Mr. James is very comfortable in the courtroom, and makes a personal investment in his clients’ cases in order to achieve the best outcome possible.