Saturday, May 1, 2010

The DOs and DON'Ts of Divorce Mediation






#1 Don't:
Involve a Combative Attorney's Approach to Your Case.  Working with an aggressive attorney, sometimes known as a "bomber," who has convinced you that mediation will fail to produce an agreement that won't be as good as what they could get you in court and then trying to bring that mentality and strategy into mediation is a major "Don't."  If you or your spouse consults with or hires a lawyer like this, (common if your spouse is angry and wants to use the divorce as a way of obtaining revenge), you are at high risk of spending loads of expensive, comparatively unproductive time in court or mediation.
#1 Do:
Choose Mediation Only.  Decide whether you are committed to mediation or going to court.  Factor in variables such as cost, outcome probability, and emotional impact of each.  You can buy what you want in court, but it may not be worth it once you subtract all the fees and emotional costs to you and your children.  When you choose mediation, trust that process and fully commit to it.  That means throwing out the information you may have acquired from the "bomber" attorney. If you are unsure of your rights at all, definitely seek consultation from an attorney, but one that is a collaborative professional or one referred by your mediator.  
#1 Bottom Line:   The kind of attorney you seek counsel from makes all the difference between being helpful or harmful to your mediation.  When you enter a settlement negotiation like mediation, you are forfeiting your best case and worst case scenario and so is your spouse.  Instead, you are creating a strong, needs-based, realistic agreement that meets both of your interests and most of all, your children's. 


#2 Don't:
Be a Bully or a Victim.  If you have a history of intimidating or being intimidated as a matter of self-preservation in the marriage and as a result have a "win-lose" dynamic set up in your marriage, mediation can be tough.  This means that you two will fight to the "death" which is defined by someone losing and someone winning.  In cases like these, negotiation can be a waste of time unless you approach it differently.
#2 Do:
Get Support.  Work with a divorce coach or counselor to prepare for your mediations sessions.  For bullies, this will help you prepare how to say what you want more effectively to win without hurting future relationships with the other parent and also help you to identify areas where you could compromise as well as deal with the feelings of losing when you do.  For victims, coaching can help you know clearly what you want and what you are willing to give up so you can have peace of mind that you did speak up and ask.  A skilled mediator can overcome this hurdle so be sure to address this dynamic before you hire your mediator.  
#2 Bottom Line:  You need to get support from a counselor or divorce coach during your mediation to obtain results that will give you peace of mind.  

#3 Don't:
Withhold Communication.  Being uncommunicative and uncooperative with the process will only make the process more painful.  Maybe you're hurt. Or maybe you can't stop thinking you could get more in court.  Or maybe you are so angry that you just clam up.  Whatever the reason, mediation requires communication.  
#3 Do:
Deal With the Emotions of the Divorce.  This is happening.  You are getting divorced.  Stop.  Just sit in that for a moment.  What emotion begins to well up in you?  Sadness?  Anger?  It's time to face the reality that divorce is one of the most difficult things you will go through in your life.  Get support.  Work with a counselor or coach.  A skilled mediator will slow the pace of the mediation to adjust to your emotional needs and a good divorce coach will be able to accelerate the pace you are able to mediate by translating your emotional needs into action.

#3 Bottom Line:  Such hurt and angry people are not able to communicate meaningfully.  Deal with your emotions with an expert.  You hire a doctor to heal your health, hire someone to heal your emotions.


#4  Don't:
Treat This Like a Business Deal.  A good number of parties enter a mediation with some negotiation training.  While this may lead to confidence, it can be counterproductive to the mediation process.  Laying a number down and walking away if it's not accepted is not how you negotiate such delicate matters such as time with the children, your children's home, transportation to work, or the boat that holds future dreams of family and friend bonding.  This is your future, not one deal with more to come.  This is your family, not an account.  They are not pawns in a game. 
#4  Do:
Take Care of Your Family and Fight Fair.  Flip the saying "It's not personal; it's business"  because in divorce negotiation, "It's personal, not business." Again, it is important to trust your mediator in the process because s/he is trained in the negotiation skills that prove to be most effective for divorce.  Even if you have that same training, you need to defer and concede to your mediator and follow their lead.  
#4 Bottom Line: Don't believe the lie that being wronged or feeling hurt by your spouse is justification for treating them like they are not a human being.  We are all human.  Mediation addresses the business of divorce and allows for humanness in the process.

#5 Don't:
Have a Hidden Agenda.  Your children play house, play video games, and play pretend.  You cannot "play mediation."  Coming to the mediation table with one face on, but working on another agenda under the table is not an option.  This playing may take the form of: hiding assets, being dishonest in answering questions because you have a plan for later, reducing the worth of assets to tip the scales in your favor, saying that a decision is for the kids when really it is for you.  If you do this, apologize, come clean and move forward.  It was a bad idea and with a skilled mediator, it can be repaired.
#5 Do:
Participate in Good Faith.  Be upfront with your needs and interests in the proposals and refusals you make.  Be willing to explore why you don't want to accept a proposal and why you won't compromise on what you have proposed.  Be honest and a strong, realistic agreement will result. Rely on your mediator.  They are trained and know exactly what they are doing.
Be aware that such behavior often stems from a spouse who:  
  • so angry and feeling hate toward the other so much that the wrongdoer will tell any lie or conceal any asset available out of spite
  • is having an affair with a new lover, especially when that person has experience in business and finance
  • is so surprised and injured by the idea of a divorce that all revenge has become the only (or main) goal
  • is so fixated on acquiring wealth that almost anything goes in service of getting a few more dollars.
#5 Bottom Line:  Good faith is the basis of mediation.  Be expected to lay all your cards on the table.  Choose your battles carefully and not for the emotional reasons of revenge, entitlement, spite, or a few more dollars.






  

2 comments:

Liaise said...

Divorce mediator still feels like a new idea in some parts of the country, but it's increasingly well-known and widely accepted.

Mark Martin said...

Hey there! Thank you for sharing your thoughts about divorce mediator in your area. I am glad to stop by your site and know more about divorce mediator. Keep it up! This is a good read. I will be looking forward to visit your page again and for your other posts as well.
Mediation is applicable to disputes in Prenuptial/Premarital agreements.
The compassionate and experienced divorce lawyers at Robert E. Hornberger, PC, Attorneys and Counselors at Law have helped many couples like you successfully resolve their divorce through mediation, rather than expensive and stressful litigation. We also regularly and successfully represent couples in all types of divorce proceedings from Contested and Uncontested Divorce, No Fault Divorce, Collaborative Divorce, Child Support and Custody cases and all types of Family Law.

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