How to Reach an Agreement in a Successful Mediation
If you are in the midst of a divorce right now you may be considering mediation. Mediation is a common form of dispute resolution available as an alternative to the traditional court procedure. Think of mediation as an amicable negotiation with your spouse through the support of a third party referee. Mediation is quicker, cheaper, and more private than the regular divorce track, however it may not be for every couple. We have previously discussed the pros and cons of mediation in depth (link). If you are unsure of whether mediation is best for your case, we recommend you start your readings there. Now if you have already decided on mediation, then continue reading for tips on ensuring a successful mediation.
Tips for a Successful Mediation
So you and your spouse have agreed to mediation. Great. This should be an easier and quicker process if you do it right. In order to make sure things go smoothly, you should consider the following tips:
Find the Right Mediator
This is first and foremost the most influential factor in determining the outcome of your mediation. Mediation is an unregulated profession in North Carolina, which means anyone can say they are a mediator, without need for any certificate or license. So you have to pay attention and take time to diligently consider potential mediators. It is important to pick the right mediator because they play a critical role in determining the outcome of your divorce, financially and emotionally. Mediators also influence the fairness of your settlement and thoroughness of the agreement. If you pick the wrong mediator, you could end up needing to resolve conflicts through the traditional divorce court anyway. If you have an attorney, your attorney will have suggestions as to who should work as a good mediator in your case.
If you are working on your divorce without an attorney, you should research what skills and qualifications make a suitable mediation. A mediator’s experience, professional background, and specific approach to mediation can vary. Some mediators are or were lawyers, judges, social workers, or even clergymen. If you are religious you might prefer a pastor or religiously-affiliated mediator. However, if you are focused on receiving the best financial outcome, you would likely prefer a mediator with an accounting or tax law background. Similarly, mediators take their own unique approach to the process. Some act as therapists and life coaches, working to let the couple reach a conclusion they desire. Others are more authoritative, telling couples what needs to happen based on the facts and their experience, leaving little room for emotion or discussion.
If you know your spouse has a quick temper and is prone to emotional outbursts, perhaps a more facts-intensive mediator would be best. On the other hand, if your spouse and you are on relatively good terms and the divorce is genuinely amicable, you may find a less aggressive and more therapeutic mediator is what you need.
Once you know what type of mediator you need, compare the qualifications and experience of potential mediators in your area and create a list of the ones you could accept. After you have created a short list of qualified mediators, you can contact each and ask questions to help you in deciding which one would work best. Also, inquire about their fees and locations. Mediators typically charge an administrative fee and an hourly rate. Mediators may place the parties in separate rooms, so to reduce the stress of the day. Ask the mediator about these accommodations.
Remember, mediators are not decision makers. They do not issue a ruling or an order. They serve as a third party, helping to get you and your spouse to a resolution.
Know Your Goals (Create a Big Picture Goal)
This goes without saying, but if you begin a task without a plan it will be nearly impossible to accomplish anything. This is especially true when it comes to mediation. You have to know your goals before you walk in the room. Think long and hard about what you hope to achieve in mediation, what you need, and what you want. There is an important distinction between your wants and needs. (More on that in the next bullet point). For a successful mediation, create a vision for the big picture and the little details with some room for flexibility. Knowing your goals is the first step in securing a successful outcome for you and your family, even if you do not receive every single item on your checklist.
Know What You’re Willing to Compromise On
Let’s be honest, no one ever gets everything they want in a negotiation. It is nearly impossible. That being said, you have to come to the table prepared to make compromises. This is where your needs vs. wants really comes in to play. You should be honest with yourself about things that are absolutely necessary, i.e. sufficient alimony or fair child custody, and things you want but could do without, such as a specific piece of furniture or the Chevy over the family’s Ford. If you begin mediation with a solid understanding of your needs and wants and where you are willing to compromise, you will be more effective and confident, which can also reduce the anxiety and emotional toll in the process.
Further, your spouse will have goals and bargaining chips just like you should. If you can predict or determine what their needs are and what they prioritize most of all, you can find a fair compromise that allows you both to receive the best possible outcome. If the relationship between the two of you allows, you might even be able to ask them outright what they need and want before mediation even begins.
If you are unsure of specific items and the level of priority to assign each one, think back to your overall vision. When in doubt, consider the item’s impact on that big picture goal.
Treat Your Spouse with Respect
Divorce can sometimes bring out the worst in people. It’s understandable given the emotional burden and impact divorce can have on your life, but you should still treat your spouse with respect. Operating from a place of respect, civility, and a spirit of cooperation, will foster a more effective mediation with a better outcome. It will also make it more likely that you avoid court and having a judge make all the decisions.
However, civility and respect should not be confused for weakness or acquiescence. You can be both respectful and persuasive, polite yet steadfast. When you do make a compromise, be sure to make it clear what you are giving up and why. When you ask for something, make your spouse understand why you deserve it and the rationale behind your justification. When possible, point out the ways your wants and demands are mutually beneficial.
If mediation turns hostile and proves unfruitful, you will have no choice but to revert to the regular divorce track of litigation We realize the complexity of marital connections and just how hard it may be to “keep your cool” given what you may have been through. Nonetheless, maintaining a level of respect to the best of your abilities is truly in your best interest.
Prepare For it To Be Emotional
Marriage can be an emotional roller coaster, but divorce doesn’t have to be. Mediation is a great opportunity to reduce the chances of being emotionally triggered by your spouse. It’s a shorter and less stress inducing process. But that does not mean it will be smooth sailing. You have to control your emotions, and brace yourself for an emotional endeavor. If you come to mediation with concrete goals, a pre-negotiated custody schedule, and tactics for keeping your cool, you should be able to maintain composure and succeed in this process. Negotiating from a place of elevated emotion can cause you to make concessions you likely did not want or plan to make. Maintaining focus on the big picture goal can help you from being distracted by emotional triggers.
Also, be sure to take care of your emotional and physical health during the whole process. Eating healthy, exercising, and getting enough sleep on a consistent schedule are all important. If you are nervous or anxious the day of mediation, try deep breathing and quick meditative activities to help you reach a state of calmness and control.. This is a stressful time, and all of these self-care techniques are definitely easier said than done, but it is always worth trying your best to keep calm and carry on. Even though mediation might be stressful, it typically is much less stressful that having your issues resolved by a judge. There is give and take in mediation; in a court setting, a judge makes all the decisions without the give and take of the parties’ input.
Have a Custody Schedule Planned Out
If you have children, then setting a custody schedule is arguably the most important and lengthy part of mediation. The best way to approach custody in mediation is to draft a plan with your spouse beforehand. If you two have an idea of how you want to handle custody before mediation begins, then you can allocate more time to fleshing out that plan and perfecting it through the help of your mediator. Try your best to come to an agreement that is as detailed and fair as possible before mediation, including holidays, birthdays, school breaks, and vacations. Do not worry if you can’t get everything ironed out on your own. If the custody discussions turn sour or you sense tension, it is okay to pause and pick up where you left off when you are in front of your mediator. The child custody provisions will guide and direct the child support obligations. Both parties will need to share their income information to properly calculate child support.
Most parties have personal and real property that will need to be divided. Just as you have considered a proposed custody schedule, have a property division plan in mind as well. Automobiles, bank accounts, retirement funds and home ownership are just some of the property division issues that need to be addressed. Full disclosure of all financial information is mandated.
So you have done your research and found the right mediator, envisioned your goals both large and small, delineated your needs from your wants, determined what bargaining chips you’ll bring to the table, prepared to negotiate respectfully and persuasively, braced yourself for emotional impact, and even drafted a custody schedule and proposed division of property. Phew. You have certainly accomplished a lot. Now what is left to do? Be patient. It may sound frustrating given all the work you have already put in coupled with your desire to have this all done and behind you, but the last tip to having a successful mediation is patience. Mediation can take many hours, and may have more twists and unexpected stressors than you originally predicted. Your spouse may be argumentative, resistance, and difficult to work with, but you have to hang in there for the things that truly matter to you. You have already put in all the other work, so now is not the time for caving in. Remember your big picture goal and keep calm. You are prepared, and have worked diligently to secure a successful outcome and now all you have to do is be patient. They say good things come to those who wait, and that is certainly the case in mediation.