How do I prepare for family court mediation?
There appears to be a lot of confusion and fear surrounding the divorce mediation settlement conference. There shouldn’t be.
The two main reasons for the mystery and worry appear to be 1) that lawyers don’t explain mediation to their clients very well (if at all), and 2) clients, who generally hate everything about the divorce process, are thus not terribly eager to learn about or prepare for the various aspects of the divorce process (which is understandable).
So, here is a concise, clear description of what divorce mediation is, how it works under the law of the jurisdiction where I practice divorce and family law (Utah), and how to prepare for it.
What a divorce mediation settlement conference is: the process of trying to reach a settlement of all (or at least some) of the disputes in the divorce case by involving a neutral third person (the mediator) to assist and encourage the spouses to settle their legal dispute(s).
That’s it. The mediator is someone who tries to help the parties reach an agreement.
If you want more details on better understanding what mediation is, you will find this informative and useful:
- The mediator does not have the power to force or order the parties to settle.
- The mediator does not dispense legal advice. Many divorcing people, who are short on funds, think they can “cheat the system” by going to mediation and not hiring a lawyer to represent them. They believe that the mediator will not only help the parties try to settle, but advise them on what good settlement terms are. A mediator is not permitted to advise the parties to a mediation. That would be a conflict of interest. A mediator cannot be a neutral and at the same time advise people with opposing interests as to what each of them should do. If what benefits you would come in your spouse’s expense, there is no way the mediator could look out for your best interest and look out for your spouse’s best interest at the same time.
- If the parties do not settle in mediation, the mediator cannot be called as a witness at trial to testify about what was discussed during the mediation settlement conference. This means that if your spouse or you made a settlement proposal or offer in mediation that was rejected, that proposal or offer cannot be brought up at trial as “proof” that you or your spouse can and should be ordered to do as proposed or offered in settlement negotiations.
- Note: many mediators try to create the false impression that mediation is a sophisticated, complicated process that can only be “practiced” successfully by elite, highly trained professionals who possess rare and unique skills. While it is true that most successful mediators have in common a certain minimal level of competence and procedures to be effective, mediation isn’t nearly as exotic and complex as these “mediateurs” would have you believe. Don’t be taken in.
- That stated, it is obvious that a well-intentioned layperson who has no knowledge of divorce law is likely not going to be as good at mediating a divorce settlement as a mediator who has training and experience in divorce law.
- The more experience your mediator has with divorce (such as a lawyer who has been practicing divorce law for decades or a retired domestic relations commissioner or judge), the more your mediator will know about the many different ways he/she has seen cases like yours settle satisfactorily and successfully. A mediator experienced in divorce law can also provide the parties with the added benefit of providing both spouses with a reality check as to just how strong or weak their respective cases are, were either or both of them to go to trial.
How to prepare for your divorce mediation settlement conference:
1. Know and understand the legal strengths and weaknesses of your case.
a. How badly you want something or want to avoid something does not make your case strong.
b. How sincerely you feel about certain principles does not make your case strong.
c. There are statutes and case law that govern how every divorce issue is to be decided. If the facts of your case don’t favor you, you will — unless your judge is corrupt and/or incompetent — lose on those issues at trial, if the case goes to trial.
d. Understanding the law and what it will and will not allow you or your spouse to have prevents you from setting your heart on things that you either cannot possibly get or that you are extraordinarily unlikely to get.
e. So, don’t go into mediation expecting bluff and bluster to compensate for the weaknesses in your case. Rarely will your spouse and his/her lawyer not be aware of the same weaknesses.
f. Go into your mediation settlement conference with an informed and realistic understanding of what you could expect to get at trial (which usually means you must be prepared for disappointment in most, if not all subjects of your divorce because very few people’s desires square with the law). Then try to negotiate a settlement that is better than or at least as good as what you expect you would get a trial. that way you avoid the time, effort, and expense that preparing for and going to trial would consume.
g. Prepare for mediation knowing what your bottom line is. What do I mean by “bottom line”? what is the least you are willing to settle for without going to trial? At what point would your spouse’s settlement proposal cause you to say to him/her, “Unacceptable. I will see you in court”? This segues perfectly to the next point
2. Know and understand your spouse’s case in the arguments behind it as well as you understand yours.
a. The more you understand the facts that bear upon the divorce case and the more you understand your spouse’s interests and motives, the better you can craft a settlement proposal that meets as many of your spouse’s desires while still consisting of terms acceptable too you.
b. The better you understand both your case and your spouse’s case, the more confident you can be in making an offer that you’re willing to go to court to defend, if your spouse rejects it in mediation.
c. Knowing your case and your spouse’s case inside and out ensures that negotiation time is spent efficiently and productively. If you going to mediation unsure of the value of your assets, how much money is in the bank in your various accounts, if you don’t know what kind of child custody award you want and why, you’re going to waste a ton of time in mediation just trying to get up to speed. Ignorance of the facts will easily be misconstrued as misrepresentation or concealment of the facts. Consequently, both you and your spouse will be frustrated at how little progress is being made toward settlement.
3. Have a fully formed, comprehensive settlement proposal in mind before you go to mediation, and send a copy of this proposal to your spouse well in advance of mediation.
a. This helps you to frame the issues in a light most positive to you. This helps to create an agenda for discussing the issues and in the order you may wish to discuss them.
b. I am amazed at how rarely anyone does this in advance of mediation, but I am never amazed at how advantageous it is for my clients and me when we do it.
c. Sending your spouse and his/her attorney a comprehensive settlement proposal in advance of mediation helps ensure that mediation doesn’t waste time and has the effect of planting the seed in your spouse’s mind that you have a command of the situation, you have a plan where he/she does not.
d. If your spouse is too lazy and/or scared or discouraged to want to think about a comprehensive settlement of his/her own, the fact that you prepared one may have the effect of causing your spouse to accept more of your proposals than would otherwise be the case if you sprang your proposal on your spouse and his/her attorney for the first time at mediation.
4. Be as open-minded, flexible, and nimble as possible. You may be surprised when you get to mediation to learn that your spouse has a proposal for settling certain issues that is better than anything you had in mind. You may learn at mediation for the first time facts that suddenly make your case a lot better or worse than you thought. Don’t reject good ideas simply because they come from your spouse. Don’t blind to yourself to beneficial possibilities, just because you didn’t think of them. By definition, no one can be prepared for surprises, but failing to acknowledge the possibility of surprise and doing your best to ready yourself for that possibility, will help you react far more rationally, and perhaps even to your advantage.
5. Do the work. How much you get out of mediation depends upon how much you put into it. How well mediation goes depends upon how well you prepared in advance and how well you participate in the mediation settlement conference itself.
Utah Family Law, LC | divorceutah.com | 801-466-9277