By Sabrina Harrison
As a practitioner of mediation, a participant, and as someone who has worked for almost a decade in a family law office I have been a part of hundreds of family mediations. While there are always exceptions, this article is intended to help prepare parties for divorce mediation and to help parties achieve the best possible outcome for your family.
- Do – Visualize the mediation and be prepared. Generally the divorce mediation process is stressful for parties coming in, which is why people avoid thinking about it beforehand. Being prepared and thinking through each aspect of your mediation, what you want, and what you can live with, is incredibly important. This will empower you to be a decision maker at the time of mediation. If it is for your divorce, it is wise to consult with a lawyer or have a divorce lawyer review any potential property settlement agreement before signing it.
Being prepared also means bringing your pay stubs and tax documents if your mediation is regarding child or spousal support. Bring the bill for daycare with you, along with the health insurance documents that show exactly what health insurance costs per month for your children. Being prepared could also mean taking the time to really think through your child’s schedule if your case involves custody and visitation. Bring their school calendar, and schedule of extracurriculars. If there are expenses with the extracurriculars and extras, whether tutors, baseball or braces it is always a good idea to have that in hand, instead of speaking of them generally. For child custody and visitation mediation it is also really important to think of the traditions that matter to your family, and make sure that your child can still be a part of them, even if it is every other year. Parents are much more likely to have regrets if they do not take time to really think about the outcomes of mediation.
- Do – Schedule the meeting at a time when you can be fully present and able to think through the issues at hand. Divorce mediations don’t go well when people are really thinking they need to pick up the kids from daycare, they are worried they will get fired because they are missing work, or they have a hunger headache because they came straight from work without snacks. Pack snacks!
- Do – Let a supportive person know when your divorce mediation is, so that they can come with you for moral support, or be available on the phone. Let your divorce attorney know as well. You may not know if what is being offered is really a good deal, and a mediator cannot advise you about what is in your best interests or give you legal advice.
- Do – Take breaks. You don’t win a prize for getting out of the room the fastest. If things are getting tense, take a minute. The divorce mediator will often suggest this, but you have the right to take a break at any time. This device gives everyone a chance to reset, but it also gets you away from the momentum. You are less likely to give things away that actually matter to you if you take a minute. Eat a snack that you planned and packed, call your mom or call your lawyer. Taking breaks makes sure that you can feel good about the agreement that you are making, and aren’t just rushing to get away from the other party.
- Do – Schedule a second mediation session if you need to. Again, no one wins a prize for getting it done the fastest. Remember that you will have to live with this legally binding document regarding your children’s custody, visitation, child support or debt and assets division for a long time. If your support person isn’t available, the other party isn’t prepared, you come up with draft document that you need your lawyer to review, you need to pick up a child or get back or work, schedule another session to finish.
- Do – Bring your divorce attorney. If the other party is bringing theirs, very few individuals feel comfortable unrepresented in mediation. If you didn’t know and the other party shows up with their lawyer, talk about what you can do, and then either have your lawyer conference in over the phone or skype, take a break till they can get there, or reschedule for another time that would work for your lawyer. I will never forget a time when Mr. Murdoch-Kitt got a call from one of his clients saying that her husband had showed up with his divorce attorney. As luck would have it, she had told him when the mediation was taking place, so he was available when she called. He grabbed her case file and got into the car ASAP, making it to the mediation in 20 minutes, but the situation easily could have gone differently.
There are other factors that parties should take into account. Not every case is right for divorce mediation.
- Don’t mediate if there has been abuse. This is especially true if you still fear the other party, or think they may hurt you as a result of mediation. Don’t take chances. If you think the other party might be using the mediation as an excuse to get you alone in the parking lot, just go to court. If you don’t feel comfortable face to face, or think they may bully you in person, you can also ask for a shuttle mediation. This means you would be alone in a room with the mediator and the professional would go back and forth between the parties. If you think this may be appropriate for your case, let your lawyer and your mediator know your concerns so they can prepare properly. They should be able to direct you as to where to park, the best entrance for you, and will let out the mediation one at a time, to give you a chance to leave before the other party.
- Don’t use mediation as a fact-finding mission. Divorce mediation is intended for good faith interactions where you actually intend to come to an agreement. If you are on an expedition for information, don’t waste your time or the mediator’s.
- Don’t blow it off. Divorce mediation is a great opportunity to get some closure in a direct way, and it is much cheaper than litigation.
- Don’t come to mediation with a closed mind. Maybe what you agree to was not originally what you had planned, but if it works, it works. Some of the most interesting cases I have had were when parents came up with their own creative solutions.
- Don’t try to avoid cost by excluding your divorce attorney. These meetings have legal consequences and ramifications. No, you don’t have to bring your lawyer all the time, but make sure they have had a chance to advise you so that you feel comfortable talking about and making decisions about the issues at hand – custody, visitation, child support, spousal support, and your debts and assets.
- Don’t get in over your head. You don’t do yourself any favors digging into the asset or debt division or retirement accounts if you don’t understand the issues. There is no shame in it! You are probably not a lawyer or financial advisor! If you feel over your head, it is a great time to take a break and call your divorce attorney or financial advisor, or schedule a meeting with them before your second session of mediation. You want to feel good about your mediation outcomes, and getting help from professionals can go a long way towards this goal.
I hope these divorce mediation tips have been helpful. If you are heading into mediation and you have a specific question that was not covered by this blog post, contact Jonathan Murdoch-Kitt, so he can help you prepare.