Mediation is a conversation. Okay, obviously mediation is more complicated than a conversation. However, at its core, mediation is a process by which the divorcing couple, or separated parents, meet with a neutral third party to try to resolve their case. This process can be done with or without attorneys. Mediation can also be private or through the Court system. Also, mediation can be limited to particular topics (i.e. parenting, child support, property settlement, etc.). There are “pros” and “cons” with each factor you add or remove from the process. Still, mediation is always nonbinding unless and until the parties sign an agreement. Therefore, the parties are having a conversation with a neutral party about how to resolve their disputes.
An overwhelming majority of family law cases settle. Many of those cases settle through mediation. Whether it be due to emotion, cost, legal advice, or just plain practicality, most cases in New Hampshire will not proceed to a final hearing (trial). This said, mediation, if done correctly, can be the most cost-worthwhile process than can help allay the emotional and financial consequences while obtaining results that are as good or better than litigation. However, both parties must be committed to the process. Good attorneys will advise their client, where possible, to be malleable and open to resolution. Both clients and attorneys would do well to creative problem solve rather than remain rigidly entrenched in goals and objectives that may not be reasonably achieved without litigation.
With this said, what are the top three things someone can do to best prepare for mediation?
- Review all documents.
Your attorney should be preparing proposals for settlement prior to mediation. You should be well acquainted with those documents. The details matter because ultimately these are the orders that could potentially control the rest of your life or make final financial solutions that are nonmodifiable. In addition, you should be reviewing your financial affidavit with your attorney. While you lawyer might find things you don’t know or remember, the client ought to be the best witness for their own expenses and income. There’s no worse feeling for an attorney to show up to a mediation to find that their client didn’t review the proposals, or failed to look at their financial affidavit. Yes, it weakens both, your ability to settle on that day, but it can also influence the opposing parties’ view of your attorney’s ability to properly advocate for you, making settlement harder in the future. - Prepare for the unexpected.
Mediation can take time. Many mediation sessions occur over multiple days. A fair number of parties come to mediation thinking, “this is a waste of time, my case isn’t going to settle”. Sometimes the client is right, but frequently they find themselves surprised walking out of mediation with a full executed agreement. On the same wavelength, there are parties confident that they know what their spouse “will do” or what their co-parent “will want”. Once again, sometimes they are right, but most of the time the client will walk out shocked that their spouse is adamant that their kids need to go to Uncle Jim’s Christmas Family Breakfast each year. The unexpected can take people by surprise and derail a mediation session. Each person should come in with a set of goals, but realize your spouse or co-parent is likely going to have similar competing goals. It’s important that you remember that they might not agree where you once agreed. - Be elastic.
The most important thing is that you remain elastic during mediation. The second most important thing is that you realize negotiating parenting time is the same as negotiating assets. Some people like to ask for the unrealistic with the hope the other partner “caves” or just says yes. You need to be firm, but fair. In general, it is critical during divorce that you listen to your attorney, not those around you. Friends and family can be great emotional support, but often, those friends and family are unaware of the legal trappings around divorce. This can lead parties to become extremely dug-in to positions that are simply not feasible or even allowable under the law. Also while the law is the same (though not always) the facts in every divorce are different. How one person’s divorce “went” is not the same how your divorce will go. It’s important that you know what you want, but do not let the perfect be the enemy of the good.
If you are considering mediation, or have been ordered to attend mediation, you should speak to one of our family law attorneys at Parnell, Michels & McKay. Our attorneys will explain the particularities of your mediator, judge, the other attorney, the current law, and so much more that could impact the tactics you take and the success of your mediation. In addition, by understanding that properly preparing mediation can result in a mutually beneficial settlement, spouses and coparents avoid raising one another’s ire and needlessly spending money. If you have questions about mediation, contact one of the experienced attorneys at Parnell, Michels & McKay. We will help you navigate the process to help you achieve the best solution possible.