The best advice to give a client in having a successful mediation where both parties agree and settle the case is to take the emotions out of the negotiations.
Divorces are an emotional process, and too many times parties focus on all the internal issues in their divorce during mediation and not on the big picture and how to divide all of the assets and debts. This leads to a failed mediation and clients leaving the mediation emotional and feeling like they have not accomplished anything.
I tell my clients to do a pros and cons list of all major issues in the divorce, such as if they have to pay alimony for this long and agree to it in mediation vs. if they don’t agree to that amount, then how much longer they will have to continue the case and pay attorney’s fees and potentially have a judge award a larger sum of alimony to the wife.
Once they start looking at the numbers and not at fault, they are able to have a clear mindset in achieving a successful mediation.
Step No. 1 is making sure you’re prepared. Mediation isn’t trial, but you and your attorney should be prepared with a lot of the same evidence that you would present at trial so you can support your position as best as possible.
Step No. 2 is to sit down with your attorney and identify your primary goals for your case. Mediation is all about trying to find a compromise that you and your spouse can both live with, so identify with your attorney those issues that you really want resolved in a certain way and determine whether you’re willing to be flexible at all on those issues. Then you can identify those issues that are less of a concern for you and try to figure out what your “bottom line” will be on those.
If you can establish your “bottom line” on all issues, that will let your attorney know what you’re willing to agree to and what you’re not, which allows for mediation to proceed more efficiently.
Next, you want to make sure that you have any agreements reached in writing with everyone’s signature before you leave the mediation. Agreements reached in mediation are meant to be binding; otherwise, it’s a waste of time for everyone so make sure that you intend to follow through with what you agree to.
If you have questions in mediation about what a certain provision of the agreement means, be sure you ask your attorney. You must also make sure to disclose everything to your attorney about your financial situation in advance. There’s nothing worse than spending time reaching an agreement, then watching it fall apart after the fact because someone didn’t understand what they were agreeing to or failed to disclose something important.
Being prepared at each stage of separation and divorce could not only save time and money; it could also avoid the stress of litigation. We encourage our clients to take mediation seriously and show up prepared.
It is essential to have an attorney review an asset / debt chart and discuss potential outcomes in court prior to mediation so that you can make informed decisions. You should also come with a variety of custodial schedules and provisions you consider essential to include in the custody portion of the agreement if you have children.
Finally, be prepared to show your math. If you say an asset has a certain value, be prepared to show the other side how you arrived at that value. Much of the preparation required for litigation needs to happen prior to mediation if you hope to avoid it.
Parties have control over the outcome and crafting their own solutions at mediation. At trial, decisions are made by the judge, often without considering the input of the parties.
A good plan to achieve successful mediation is to outline your goals for mediation in advance.
You and your attorney should go through all of the contested issues in your case, including custody, visitation, child support, spousal support and property or debt distribution. Then, make a list of the relevant facts, evidence and applicable case law to support your position.
Your attorney will be able to advise you on what a judge may order in your case based on the facts and law in your case, and with that knowledge you can make a reasonable list of goals you want to achieve through mediation.
You should also remember that if you are working towards resolving of your case, each party is going to have to make some compromises.
There are several steps that you can take to have a successful mediation.
The first is to be informed. You can’t discuss what you don’t know about. Know what your assets and debts are and what they are worth. You also want to know what is important to you.
Second, be willing to talk and to listen. If you aren’t willing to do either, mediation will not be successful.
Finally, be willing to compromise. If you are unwilling to move on your position at all, then mediation won’t work. By following the first step of being informed, you are in a position to know what compromises you are willing to make.
One of the best things a client can do to achieve a successful mediation is to go into mediation with the right mindset.
When you go to mediation, it is not to force the other side to accept all of your demands for settlement. The purpose is to find some sort of middle ground where each side is getting something they want, but also giving something up.
Mediation is the ultimate test of someone’s ability to compromise. I usually make a list with my clients regarding what items they feel are non-negotiable, what items they feel are negotiable and then list items from most important to least important. This is an extremely helpful tool, because not only do you have a complete list of assets, possible visitation schedules and debt obligations, but now you have organized the entire case into what is most important for you to least important.
With these tools, it is much easier to get through mediation and know up front what you are willing to give up and what you really want to push for. It is also a good idea to think about what you believe is most important to the other side so that you can evaluate and determine what you can gain by giving the other side something that they want.
Finally, while you want to be open to compromise, don’t start with your worst-case scenario; start with your best-case scenario and negotiate from there.
- Meet with your attorney prior to mediation to have a proposal on paper going into the discussion;
- If you do not have an attorney, do your homework on the law prior to the mediation;
- Keep an open mind and do not react defensively;
- If you are not comfortable with something, do not agree to that particular agenda item;
- If you can agree to most things, but not all, mediation is still a success because you have just reduced the issues for litigation;
- Feel free to step out from mediation to call your attorney for advice; and
- Remember in the State of Ohio that mediation is not binding and cannot be used against you in court.