Tag: negotiation

What’s wrong with divorce mediation in Utah?


And much that you can prevent, once you know what to avoid, what to do, and why.

Profiteering mediators. It’s hard to find anyone selling goods or services these days who isn’t trying to take advantage of the client or customer. Mediators (not all mediators, but many—more than I’d care to admit) are no exception.

Overworked, understaffed judges that don’t want to do their jobs, and so they pressure divorce litigants into settling. I’ve personally witnessed judges and commissioners telling divorce litigants that they should settle because “I [the judge] will probably do a worse job with your case than you can.”

A fundamental misunderstanding of how and why successful mediation succeeds. Courts and lawyers have lost sight of what makes for good mediation, i.e., conflict resolution that is faster, less expensive, less acrimonious, more suited to the particular circumstances of the family, and more likely to result in less future litigation.

“Shuttle mediation”. If you are preparing for your divorce mediation, learn about shuttle mediation and avoid it.

  • With rare exception (such as when a party is truly terrified of being in the same room with another, or if there is a protective order in place that bars the parties from being in each other’s physical presence), shuttle mediation is an inexcusable waste of time, money, and duplicative effort.
  • Shuttle mediation at least doubles the time a mediation would otherwise take were the parties speaking to each other across the same table or in the same Zoom meeting.
  • Because the only participant in shuttle mediation who speaks to the disputing parties is the mediator (the parties don’t speak to each other directly in shuttle mediation), the mediator can manipulate the negotiation process by telling one party one thing and the other party something completely different (and many mediators cannot resist that temptation).
  • Many mediators like shuttle mediation because by doubling or even tripling the amount of time it causes mediation to take, mediators thus double or triple their fees over what they’d otherwise earn were the parties all in the same room or in the same Zoom conference.
  • The way mediation is scheduled and held is also incredibly inefficient and wasteful. Parties should go to mediation after exchanging with each other written comprehensive settlement proposals. So much time is wasted in mediation doing anything but actual negotiation.

While you are required to engage in mediation to try to settle your divorce case, you are not required to engage in shuttle mediation. If your spouse will see reason and agree to avoid shuttle mediation, then ensure that your mediator is not a shuttle mediator.

Mediation isn’t necessary if the parties and their respective attorneys are willing to negotiate without a mediator. If the parties can discuss the case and negotiate without a mediator, they are free to do so. Few attorneys, however, are willing to do this. Why I do not know. But if you are a client and you believe your spouse (and his/her attorney) is willing to meet in settlement negotiations without a mediator, try it! If such negotiations fail, you can always go to mediation next.

Parties (usually because of their attorneys) wait too long to discuss and negotiate settlement. Attorneys make less money when cases settle sooner than later. Don’t go into mediation unprepared, of course, but don’t put it off any longer than necessary.

Too much time in mediation sessions is not spent in actual negotiation. Consequently, mediation ends up being incredibly inefficient and wasteful. Often the first 2/3 of the time spent in mediation is spent “getting up to speed,” with the mediator giving an “introductory speech” about how mediation works and with both the mediator and often unprepared attorneys trying to get an understanding of the case and what the issues are. All of that can and should be dealt with before the mediation settlement conference itself.

  • The mediator should send the parties a link to his/her written and recorded “introduction to mediation” presentation to read/listen to/watch before everyone meets in the mediation settlement conference.
  • The parties should meet in mediation only after:

o   expeditiously conducting necessary discovery, so that the material and relevant facts are known to the parties; and

o   then exchanging with each other (and providing the mediator with copies of) their written comprehensive settlement proposals, so that everyone knows in advance 1) what the issues are and 2) what the initial respective positions of the parties on the issues are.

Utah Family Law, LC | | 801-466-9277

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How can I turn arguments into negotiations and agreement?

How can I turn arguments into negotiations and agreement?

If you could only read and apply one book on the subject, I would recommend “Start with No,” by Jim Camp.

Here is the link to buy the printed book on Amazon

Here is the link to the audio book on Audible

Utah Family Law, LC | | 801-466-9277

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Good and Bad Advice About Preparing for Mediation

There’s a lot of advice on how to prepare for and go to mediation successfully. But how good is the advice? Let’s find out.

Read this article about how to prepare for a successful mediation (I didn’t write this one):

It contains some good advice. It contains some bad advice. I’ll explain why below.

The Good

“2. Present your case to your mediator previous to mediation”.

This bit of advice is a little deceptive. Why? Because in my experience when you take care to prepare a mediation position statement and to provide the mediator with copies of the relevant documents needed to discuss the issues, rarely does the mediator review these documents in advance. Like most people, unfortunately, most mediators want to make as much profit as possible. The more time they spend preparing for your mediation, the less time they have to do other things they like to do. Mediators get paid the same amount of money whether they prepare in advance for your mediation or just wing it on the day of. Most mediators wing it on the day of. This, however, doesn’t mean you shouldn’t prepare in advance.

Whether your mediator benefits from it, you will benefit personally from thinking over the issues and generating ideas for settlement. The better you understand your case, the better you can educate your mediator.

The good advice in this paragraph of the article lies in extolling the benefits of preparation. The better prepared you are for mediation the more likely the mediation will be productive.

Preparation takes time and effort (and if you have an attorney assisting you, it takes money to pay for his/her help), and no matter how well you prepare, there’s no guarantee of success. Boo. But serious, good preparation is worth the effort nonetheless. Yay. Why? The more you prepare for mediation, the better you understand and appreciate the strengths and weaknesses of your case. The better your understanding of your case.

  • The better you can determine what the possible fair real-world settlement agreements might look like.
  • The better you can generate settlement ideas and options. Simply put, it takes more time and effort to come with Plan A and Plan B than just Plan A. And when start asking what your options are, the more options you will notice. Imagine how much better prepared you’ll be to settle on fair terms if you have a wide range of ideas on what all those fair terms could be and form they’d take.
  • And while the most productive mediation is one that ends in a satisfactory settlement, even a mediation that doesn’t end in settlement can be productive. If you don’t settle in mediation, you may learn things in mediation helpful you in your trial preparations. The better prepared you are for mediation, the better prepared you are to frame the issues and to discuss them. So even if the mediation does not end with a settlement, you and your spouse may come to understand better the respective strengths and weaknesses of your cases.
“3. The Parties’ State of Mind is Crucial”

The article goes on and on about the importance of being in the proper state of mind for mediation and goes to great lengths to describe what “being in the proper state of mind” means. I can sum it up in far fewer words:

Be prepared to compromise so bad it hurts.

Think about virtually every agreement you have ever made. With the exceptions of the deals you make with people you have over a barrel, the deal you end up with is almost never as good as the one you hoped for. Divorce mediation is no exception.

While every now and then certain people get extraordinarily lucky in divorce settlements, the overwhelming odds are that you’re not going to get everything you want out of a settlement agreement. Accept it.

While preparation for mediation is crucial, no amount of preparation will make your case any stronger than it inherently is. No amount of preparation will make your spouse’s case any weaker than it inherently is. No amount of preparation magically causes the universe to bend to your will. Preparation helps you to make the best of a bad situation.

So when mediators urge you to “keep an open mind” and “be flexible” those are just euphemisms for “don’t be surprised if the best you can do is a mediocre deal.” That’s what settlement is most of the time.

True, occasionally two opposing parties with differing interests find a way to think “win-win,” but that rarely happens in divorce. There’s just never enough money and assets to make both parties financially secure. Just too much anger, bitterness, and vengefulness to enable the parties to trust each other and desire to work together for their mutual benefit. And should that come as any surprise? If you could amicably cooperate, think win-win, and make each other’s happiness your priority, you would not be divorcing in the first place.

The section of the article dealing with the importance of patience is excellent. Spot on. In most cases, a mediation doesn’t really start to get serious – and seriously productive – until the parties realize they are running out of time. Before then, the parties will spend a great deal of time (wasting a great deal of time, actually) telling the mediator their life stories.[1]

So while it is not unusual for a lot of time to be wasted in the first few hours of mediation, that does not mean that you must suffer this waste as a “natural” or “necessary” part of the mediation process. The sooner you can get down to business, without the venting and posturing, the more time you’ll have to formulate options and reach a settlement that is well-thought-out and as fair as you can reasonably expect.

The Bad

“1. Choose your mediator carefully”

This is bad advice because rarely do you get to choose your mediator.

Choice of mediator is a joint decision you reach with your spouse. As you might have guessed, one way to ensure your choice of preferred mediator is not chosen is to inform your spouse of your choice of preferred mediator. Most spouses will reject your proposed mediator on the basis that you proposed that mediator.

Another problem with choosing mediators: some people propose bad mediators and/or mediators you don’t like just to make you suffer.

So when the article tells you to select a mediator based upon the best fit of personalities, etc. that’s probably never going to happen. It can happen, but it’s not likely. It’s always hard to get agreement between two warring parties. So it should come as no surprise that if you and your spouse can’t agree upon the terms of your divorce without a mediator, why should you and your spouse suddenly develop the ability to cooperate when choosing the mediator?

Frankly, while there are some elite mediators who seemingly have an almost superhuman ability to get agreements out of almost anyone, I don’t know who any of these people are, and even if I did, these are the kinds of mediators you likely can’t afford and who are booked out so far down the road that you might have to wait months or even years before you can get a spot on his or her schedule. You and your spouse probably don’t want to spend months or years in a fruitless search for such a unicorn mediator.

The good news is that there are plenty of merely excellent mediators that you can book on just a few days’ or few weeks’ notice. Candidly, there is more value in getting mediation scheduled as soon as possible, before the attorneys’ fees and sickening worry start to rack up.

Odds are that if you find a mediator who is a former judge or a former court commissioner, or an experienced divorce and family law attorney with at least 10 or 20 years of experience, that is the kind of mediator who can help you frame the issues properly, help you understand the stakes and your options realistically, and think creatively to help you and your spouse reach an agreement that is as mutually beneficial as possible, fair, and – though it may not be an agreement you are thrilled with – an agreement you can live with. An agreement that is preferable to spending more time, effort, worry, and money on rolling the dice at trial.

The mediator has no power over you. He/she cannot tell you what to do. The mediator cannot be a witness for or against you in court. So don’t fear your mediator. Don’t worry about picking “the wrong mediator”. If you and your spouse end up picking a lousy mediator, you can always and the mediation session sooner than later and pick another mediator and try again.

Mediation succeeds only if you and your spouse reach an agreement. Mediators cannot force a settlement on anyone (although many try[2]). The mediator is not a miracle worker. The mediator does not possess magic powers of persuasion. So don’t pin all hopes of successful mediation on your mediator. Yes, there are mediators who are so incompetent that they do more harm than good, but what matters most is that you and your spouse are both of the mind that you would rather settle than continue to fight and litigate.

Knowing you don’t have to fear your mediator, and knowing that it’s unlikely that you and your spouse will agree upon “the best” mediator, you can take this part of the article for what it’s worth:

“You may be familiar with the mediators under consideration, but take time to think carefully about the personalities involved in your case and whether a particular mediator would be effective in dealing with you and your client. Also, think about the potential interaction between the mediator and your opponent. Mediators come to their task with differing experience, talents, dispositions, and styles. The mediator who would be perfect for resolving a case involving complex assets and property division issues may or may not be the best person to mediate a case focused upon custody and support issues. It is worth your time to research the background of the mediator. It can also be very helpful to solicit the advice of colleagues who have participated in mediations with a particular mediator. Finally, be prepared for the possibility that your opposing counsel may not agree with you as to the optimal person to handle the mediation. As an attorney representing a client, I attempt to diffuse this issue by providing opposing counsel with a list of three mediators, any of whom would be acceptable to me and my client. I allow opposing counsel to pick from the three and, in virtually every case, one of the three is acceptable.”

“4. Successful Family Law Mediation: Closing the Deal”

I struggled with whether to consider this bit of advice good or bad.

On the good side: if you and your spouse can – in the time you schedule to hold mediation – adequately identify, discuss, and resolve all of the issues in your case to your mutual satisfaction, and then reduce that agreement to a complete and clear written agreement, that is beautiful. It is not, however, terribly common.

But on the bad side: Far too often what happens is that the parties become desperate to reach an agreement for the sake of reaching an agreement. Any agreement. Anything to bring this horrible divorce case to a close. Anything to stop spending money on lawyers and mediators and Lord knows what else.

It is so tempting to believe that any settlement agreement is better than no settlement agreement. But it’s a lie. And when you’re desperate and fearful your judgment can be fatally clouded.

It’s similar to the feeling you have after you’ve negotiated with a used car salesman for hours and find yourself tempted to make a bad deal simply because you don’t want to walk away feeling as though you wasted all that time with nothing to show for it.

But just as you feel like a sucker the next day after you bought that overpriced heap, making a hasty settlement agreement doesn’t feel any better. In fact, it feels a lot worse. A bad deal on a used car can be minor inconvenience for a few years. A bad deal in divorce can dog you for the rest of your life.

I wouldn’t sign any divorce settlement agreement without sleeping on it first. That’s not only fair to you, it’s fair to your spouse. If the proposed deal still looks good in the morning, after you’ve had a chance to let your subconscious work on it, after you had a chance to review it with your attorney who was with you in mediation (or with an attorney for the first time, if you went to mediation without your attorney in the first place), after you’ve had a chance to review it with a trusted friend, then it’s probably a good deal and one that’s worth making. You’ll feel the peace of having taken a reasonable period of time to think it over before you sign your name and make it permanent.

If your spouse tries to pressure you into signing by claiming the deals off unless you sign right then and there, that’s probably a very good indication that it’s a bad deal for you.

Sleep on it. Any deal worth its salt will survive that.

Utah Family Law, LC | | 801-466-9277

[1] The reason this is a waste of time is because the mediator doesn’t find this information particularly useful. The mediator is there to help you reach an agreement, not to act as a therapist. A mediation needs to be conducted in a businesslike manner to be efficient and to provide you the greatest value.

[2] Many mediators have a personal stake in mediations because they want to brag about their high success rate. The more mediations that they conduct that end with the agreement, the more effective they can claim to be. So even if the mediator himself or herself would not make a deal if the case were his or her own, many mediators will twist arms and put a lot of pressure on parties to settle a case simply so that the mediator can claim the mediation was a success. Be aware of this possibility upfront.

It won’t be hard to tell when a mediator is putting pressure on you to settle. When that happens, recognize it and don’t give in. You don’t have to chew out your mediator for pressuring you. You may want to kindly point out to the mediator that he or she is pressuring you and that that is inappropriate. Another way of responding to mediator pressure is to point out that if and when you want the mediator’s opinion, you will ask for.

While the temptation to pressure one to settle is real, good mediators do not pressure anyone to settle. Good mediators are secure enough in their abilities and their limitations to know that whether people settle in mediation is not necessarily a reflection of the skill or effectiveness of the mediator.

Now good mediators will sometimes ask if you would like their opinion on whether the proposed settlement is appealing and worthwhile. If I were you, I would listen to such opinions. Experienced mediators can often help you recognize a good deal even when you can’t see it on your own. While it costs you nothing to hear and consider a professional opinion, it might cost you plenty if you never bother to hear the opinion out in the first place.

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