Wednesday, May 18, 2011

How to Prepare for Family Law Mediation.

Some divorcing couples anticipate nastiness, escalating expense and out of control adversity in divorce, child custody and child support litigation.  To avoid the unpleasantness, some couples try mediation, which is when you hire a neutral person is to help you reach a settlement.  However, mediation simply does not fit every case.  Additionally, there are times when one person’s idea of a fair or acceptable resolution is far removed from the other party’s idea, and a mediation session will only be little more than another forum for griping.  

All that said, some couples can productively use mediation to settle some or all of the issues between them.  However, you must be prepared.  Here are some tips for how to make your mediation successful:

1. Understand that for mediation to work, both parties must approach it in good faith and have some semblance of urgency that they are working towards a resolution.  If both parties are not committed to making mediation work, it will be a useless exercise.  The parties must also remember that the result of mediation is often a creative solution to their conflict tailored to their individual needs and not necessarily the result that the parties would obtain were they to go through the court system.  

2. Remember that mediation begins with your initial contact with the mediator whether it is a phone call, email or in person meeting.  Make a good impression on the mediator so that you will be reviewed favorably.

3. The mediator should set the tone and procedure for the mediation sessions, as well as the schedule and ground rules.  Follow the mediator’s lead.  During a telephone call or meeting, always have your calendar ready and all documents that the mediator requested you provide.  Additionally, attempt to be as cooperative and constructive as possible.

4. Different mediators manage their cases in different ways.  However, you should be:
a. Ready to discuss the facts of your case in a non-confrontational and plain-spoken manner.  Rhetoric, personal attacks and nasty comments will not help you to resolve your matter peacefully.
b. Understand your own needs and interests.  Some people try to go into mediation without an understanding of their own goals and what they wish to accomplish.  
c. Be aware of the other party’s position so that you will be ready to react and present your counter-points.
d. Understand what issues you might already agree upon with your ex-partner.  Checking off items that have been resolved can give both parties a sense of accomplishment and satisfaction.  
e. Plan for any compromise or trade-off.  Sometimes something may be way more important to the other party than it is to you; thus, you should be ready with a list of those items or issues that you may be able to trade for something that has more value to your particular situation.  

5. Remember that mediation has its limitations.  If there are significant legal issues, such as the interpretation of a Prenuptial Agreement, or the value of a closely-held business or facts in serious dispute, such as income of a party or the existence of an asset, it may be unlikely that mediation will help the parties come to a meeting of the minds.  The goal of mediation is a satisfactory settlement.  Your mediator is not a decision maker, a trier-of-fact or a judge; therefore, so do not expect a decision.  Manage your expectations as to what can be reasonably accomplished or resolved in mediation.  

6. Understand the requirements of mediation such as the documents that will be required to be exchanged and the procedure to be used in the sessions.  You will be less nervous if you have a firm grasp on your role.

7. Despite parties’ best efforts, mediation sometimes simply does not work out.  The parties then proceed to trial or even arbitration.  Accordingly, prior to beginning the mediation, both parties should agree in advance on whether anything said or exchanged in the mediation will be admissible later at trial or can be used against a party.  Additionally, the parties may agree in advance on what documents are considered confidential.

8. Money is always a hot button topic.  When couples have children, sometimes it is more productive to first mediate custody issues and then move on to unwinding their financial lives.  Once parties have an understanding of how the custody arrangements will work out with their children, and feel secure in that area, they may be more amenable to discuss financial issues.  However, when a parent is worried about how often they will see their children or their children’s stability and security, they often have trouble focusing on the economic issues.

9. Make sure your perspective and case is reasonable and rational.  Insisting on a demand that is so high or completely out of the realm of possibility that the other side would be foolish to agree, only serves to inflame emotions and telegraph a message to the opposing party and the mediator that you are more interested in the fight than the resolution.  

10. Have an understanding before going into mediation about how the results will be recorded or reported.  Some people believe they have a deal in mediation and only find out later the other person changed their mind, or refused to sign a written agreement.  Understanding these ground rules before you start can help both parties avoid wasting their time.  

11. Family law situations are, by their nature, often confrontational and highly personal.  Despite the inherent hurt feelings in these situations, do your best to be polite, professional and cooperative.  You are there to persuade the other party to agree with you on a settlement.  You are not there to convince the other party that you are right and they are wrong.  In this regard, the mediator can be your ally if you prove your own trustworthiness and credibility.  

Finally, and perhaps most importantly, consult with an attorney, familiar with family law matters, before you enter the mediation process.  That way you will have an understanding of your rights and responsibilities and a framework in mind for what you perceive to be a reasonable settlement.  


Mark Martin said...

Hey! 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. Thank you for sharing your thoughts about divorce mediator in your area.
Mediation is applicable to disputes in Family businesses.
All divorces and separation require some amount of negotiation of the parties involved. The question is how you are going to resolve those issues. You can argue and fight in court or you can talk it out calmly and rationally with the help of an experienced divorce mediator. The end result will be the same, but the expense, the stress and the emotional damage you will do to yourself, your family and your friends through litigation may be very different.

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Legal Mediation said...

Great post! Been reading a lot about different legal mediation situations. Thanks for the info!