Mediation. The More You Know.
What is mediation and how does it work?
Probably 98% of family law cases settle without a trial. Often cases settle in mediation. Mediation of child custody cases and equitable distribution cases are mandatory in North Carolina. Here are a few tips for making the most of your mediation.
Tips for mediation:
Do your due diligence beforehand. Confer with your lawyer and his or her staff to determine what information and documents must be obtained and analyzed. Discover the information you need to know to be able to make sensible decisions. As much as possible, be able to back up your contentions with corroborating documents.
What should you bring to mediation?
Meet with your lawyer or his or her staff beforehand. Know the facts of your case. For property division, know the value of all the assets and liabilities. If spousal or child support is on the table, know each spouse’s income and earnings along with expenses. Put everything on a spreadsheet that can be manipulated during the mediation day. The spreadsheet is a working tool and does not need to be disclosed if there is not a good reason to do so.
Plan for a long day
Make arrangements for the kids to be taken care of if you aren’t available. Bring snacks or drinks with you if you have special dietary restrictions or concerns. Bring a book, tablet, work, or something to do in the down time.
Plan to manage your emotions
It will be a hard day. Emotions will run to the surface. You will feel all range of emotions: intense anger, frustration, irritation, disappointment, fear, pleasure, sadness – all in one day. If your feelings are intense or if you are flooded with emotion, take a break. Take a walk. Go outside. Spend 15-20 minutes to clear your head and re-focus.
Get ready to break the rules
You may discover that you are willing to agree to terms you swore you would never agree to. Be prepared to throw the spreadsheets out the window and barter in broader terms.
Accept that you’ll feel pressured
Mediation is all about finding compromises. Compromises are hard. You may feel pressure by the mediator, or by your own lawyer, to agree to terms. Listen to your inner self; you know intuitively what choices are right for you.
This is the most important “rule” of all. Listen to WHY your spouse wants certain terms. All day there will be a hubbub of positions. Positions are like, “I must have the house.” “I must have equal custody.” Positions are not evil, but the details should be examined to get to the essential interest that is at the heart of the position. Ask “why?” And, listen. Really listen. Try hard to consider the message not the messenger. Then, thoughtfully consider why YOU want certain terms. Positions often belie feelings. Understanding your own feelings and your spouse’s feelings can provide insight into what is really motivating the position. Solutions then become more visible.
This is a hard one. A family law mediation has a life span.
- The initial infancy stage is all about concrete positioning – each side tells his or her side of the story and each spouse feels justified and right in his or her position. Then each side gives and receives a ‘first offer,’ each reflecting his and her concrete positions. These initial offers generally reflect each spouse’s best outcome, winning every disputed issue. The spouse receiving the offer is outraged; seething with indignation and disbelief.
- In the second stage, things begin to inch forward. Each side makes concessions, moving with each exchange.
- In the third stage, the deal is made. It is often in this stage where the participants are figuring out what’s important (a.k.a., determining the underlying interest).
- The final stage is the settlement document drafting. Whoever coined the phrase, “the devil is in the details” got it right. Positioning comes back into play. The mediator is an important tool during this process.
Know your limits
If you are overwhelmed by fatigue, by the details, the pressure, or the emotion of the day, STOP. Nothing positive comes from negotiating when you are exhausted and your judgment is foggy.
Personality traits that you despised during the marriage aren’t going to change. If your spouse always bristled whenever your parents came over, that spouse is not going to have a personality transplant in the mediation.
Remember the odds
Many cases settle in mediation. Most cases settle before going to court, even if the mediation did not produce an agreement. Odds are, yours will too.