Editor’s Note: This article was originally posted in 2019 on Karencovey.com, and was written by Karen Covey.
Divorce mediation costs less money, takes less time, and gives you more privacy and control over your divorce than contested litigation ever will … when it works. The key to making it work is preparation. These mediation tips will help you get prepared so that you have the greatest chance for making your mediation a success.
But, before diving into the tactical mediation tips, it helps to start by defining exactly what is a “successful mediation.”
What is a Successful Divorce Mediation?
Most people think a “successful mediation” is one that resolves ALL your divorce issues.
That makes sense. After all, the purpose of mediation is to reach an agreement. If you and your spouse agree on everything, you both win! Right?
If you’ve reached an agreement simply because one of you caved in on everything, that’s not much of a success. Similarly, if one of you felt forced to agree to something that you didn’t really want, you may have reached an “agreement,” but it’s not likely to be a solid one.
What’s more, if you reached an agreement, but it was based on false information because someone lied about the finances, that’s not much of a “success” either. (It may also not be much of an agreement. Depending on the circumstances and the law in your state, the spouse who was deceived may have grounds for overturning the whole agreement later when the truth comes out.)
In short, a “successful divorce mediation” involves more than just reaching an agreement. It involves reaching an agreement that both you and your spouse think is reasonable and ” reasonably fair.” (Or, at least, reaching an agreement that you both think is equally “unfair.”)
Why Mediate Your Divorce?
There are many reasons to mediate your divorce. Those reasons include:
- Saving time (mediating your divorce is usually faster than going to court);
- Saving money (mediating costs less than litigating);
- Keeping your divorce issues private (everything that happens in court is part of the public record); and
- Having a more amicable divorce (instead of fighting you and your spouse are negotiating).
All of those are great reasons to mediate your divorce. But there are deeper reasons why mediation makes sense in divorce cases. Divorce mediation:
- Preserves a healthier relationship with your soon-to-be-ex (fighting in court is almost guaranteed to make you enemies).
- Teaches you and your ex how to communicate with each other about difficult issues (a good mediator can help you and your spouse learn better communication skills).
- Creates a more long-lasting agreement (you and your spouse are more likely to abide by an agreement that you created than one that lawyers created for you).
All of those reasons are going to be vitally important as you try to navigate your post-divorce life – especially if you have to co-parent together after your divorce!
Don’t Get Sucked Into “All or Nothing” Thinking
While a truly successful divorce mediation will resolve your entire divorce, you can still be successful even if your mediation doesn’t settle every issue in your divorce.
If you and your spouse were able to agree on SOME issues, you succeeded.
If you learned how to see issues from your spouse’s perspective, or learned what matters to your spouse, you succeeded.
Even if you and your spouse agreed on nothing, if you at least got some insight into your what your spouse wants, or what s/he may be willing to settle for, your mediation wasn’t a total waste of time.
How Does Divorce Mediation Work?
There are many different types of divorce mediation. Each type works in a slightly different way.
Traditional Mediation v. Lawyer-Assisted Mediation
In traditional mediation, an independent mediator helps you and your spouse negotiate with each other. The only people in the room during the mediation are you, your spouse, and the mediator.
Traditional mediation works well when you and your spouse are both able to speak up for yourselves. But if you don’t feel comfortable doing that, you may choose lawyer-assisted mediation instead.
In lawyer-assisted mediation, your lawyer and your spouse’s lawyer are with you and your spouse during the mediation sessions. (Note that lawyer-assisted mediation will cost you more because you’re paying both your lawyer and the mediator to be present during the mediation.)
Mediations also vary in the time frame in which they are conducted.
Multiple Session v. Marathon Session Mediation
Some mediations are conducted in a series of sessions. Sessions are typically about two hours but could run a little longer or shorter.
Other mediations are marathon sessions that go all day. While that kind of mediation can be grueling, if you or your spouse has to travel a long distance to attend the mediation, it often makes sense to try to resolve as much as you can in a single session.
Mediations also vary in other ways. For example, some mediations are conducted with everyone sitting in the same room. Other mediations are based on a model of “shuttle diplomacy.”
In that type of mediation, you and your lawyer are in one room, your spouse and his/her lawyer are in another room, and the mediator shuffles between rooms trying to broker a deal.
Shuttle mediation can work well in high conflict cases. But, because you and your spouse aren’t actually working on anything TOGETHER, it is not as effective in promoting ongoing good communication between you as traditional mediation.
What Type of Mediation Will Work for You?
Each type of mediation has its pros and cons. You may or may not have the ability to ask for a certain type of mediation in your divorce. If you do, then you would be wise to consult with your lawyer about which type of mediation you should choose.
Even if you don’t get a choice about the type of mediation you will use in your divorce, you need to make sure that at least you know which type of mediation you will be having … preferably BEFORE you walk in the door!
Knowing HOW your mediation will be conducted will go a long way in helping you prepare for what lies ahead.
Divorce Mediation Strategies
Another thing you need if you want to give yourself the greatest chance for success in mediation is: A strategy!
Having a strategy doesn’t mean that you have to spend weeks formulating some grand Machiavellian plan for how to manipulate your spouse in mediation. It simply means that you have to think about a few basic things.
Mediation Strategy #1: Know What You Want
It sounds so simple it seems absurd. But you would be amazed at how many people walk into a mediation NOT knowing what they want.
They let the mediator guide the discussion. Then they consider each issue separately and either agree to it or not.
The problem with that kind of approach is that when you’re focusing on the details you never put together the big picture! So you may end up saying “yes” to a lot of little things that seem okay in and of themselves. But then, when you put all of your small “yeses” together, you end up with an agreement you would definitely have said “no” to!
Mediation Strategy #2: Know What You’re Willing to Give Up
No matter how skilled you are at negotiation, you are not going to get everything you want in your divorce. (Sorry!) You are going to have to give up something. So, before you start negotiating, know what you don’t care about!
Make a list of the things you are willing to give your spouse in your divorce. Make another list of the things you’d rather not give your spouse, but will give up if you can get something that matters more to you. Being clear about what’s in both categories will help you a lot when you’re mediating.
(BONUS TIP: If you know of something that your spouse really wants, and you don’t care about: Score! That is the kind of thing you can use very well as leverage in your mediation.)
Mediation Strategy #3: Know Your BATNA and your WATNA
BATNA stands for “Best Alternative to a Negotiated Agreement. WATNA stands for “Worst Alternative to a Negotiated Agreement.”
If you want to make the best mediated settlement agreement possible, you have to know your BATNA and your WATNA. That means you have to be able to answer these questions:
If everything went my way, what is the BEST settlement I would be likely to get in court? (BATNA)
If everything went against me, what is the WORST settlement I would be likely to get in court? (WATNA).
Once you know the best and the worst that you are likely to do in your divorce, you can start to negotiate for something that falls in the middle.
Here are 10 more divorce mediation tips.
10 Tips for a Successful Divorce Mediation
Mediation Tip #1: Pick the right mediator.
All mediators are not created equal.
Some are better at handling highly conflicted emotional situations. Others are better at handling complex financial arrangements. Some mediators will mediate cases involving domestic violence, others will not.
If your case is complicated in some way, or if it involves any special issues, make sure you find a mediator who is qualified to handle those issues. Otherwise, your mediation may flounder or fail simply because your mediator can’t successfully navigate through the specific problems your case presents.
Mediation Tip #2: Be prepared.
Other than picking the right mediator, the most important mediation tip you need to remember is to be prepared for your mediation. If you don’t know what you’re doing, or you don’t understand how mediation works BEFORE you walk in the door, you dramatically decrease your chances for success.
Talk to your lawyer before you go to mediation. Make sure you know what your legal rights and responsibilities are. That means you need to know how your state divides property, and whether alimony will be a factor in your divorce. You also need to know alimony and child support in your state are calculated.
Before you attend the mediation session, you also want to make sure you have gone over all of your financial documents. If you don’t understand any of those documents, talk to a financial professional, and educate yourself BEFORE you start mediating. You can’t negotiate a financial settlement if you don’t understand what you have, and how your assets work.
Mediation Tip #3: Keep the lawyers out of the mediation sessions.
Lawyers are trained to be advocates. They are used to fighting in court, and their focus is solely on winning, regardless of the cost. Unfortunately, all of the skills that make lawyers great in court, make them a disaster in mediation!
Instead of helping parties reach an agreement, most lawyers only fuel the fight. While getting a lawyer’s legal advice before and after mediation is essential for making the best agreement, having the lawyer present during the mediation session is rarely a good idea.
Mediation Tip #4: Do your homework.
When the mediator asks you to provide financial documents by a certain date, do it! If you need to get property appraised, or get pension information, or investigate school district boundaries so you know where you need to live after your divorce in order to keep your child in the same school, do it!
You can’t talk about what you don’t know. If you (and your spouse) don’t do the tasks you need to do in order to move your mediation forward, you will go nowhere.
You also can’t talk about what you don’t understand. If finances have never been your thing, then you need to take the time to learn how the finances will work in your case. What’s more, you need to learn that BEFORE you start negotiating!
Mediation Tip #5: Know what you want and need before you walk into the mediation session.
Before you start negotiating you have to know your bottom line.
What do you absolutely need to have in order to settle your case? What do you want to have? (Note that what you want and what you need are not always the same.) What would be “nice” to have that you don’t care a lot about?
Being able to answer these questions is way harder than you might think. You have to spend time thinking about what matters to you. You have to make a budget and a balance sheet so that you know what you need. All of that takes time and effort. What’s more, it’s NOT something that your lawyer will do for you!
Your lawyer can’t tell you what matters most to you in your life. Your lawyer can’t tell you whether it will work better for your family if you have your kids for one week at a time, or in two or three-day blocks. Only you can figure that out.
Mediation Tip #6: Be honest.
While plenty of people think of mediation and divorce as games, if that’s how you view them, you’re going to end up with an ugly divorce and a shallow and screwed up life. You’re also not likely to have a successful divorce mediation.
To reach a reasonably fair agreement in mediation, you and your spouse both have to be willing to come clean with your financial information. You need to know what both of you have, what you owe, what you earn and what you spend. Unless you know those numbers with reasonable accuracy, mediating your divorce will be a total waste of time.
(A word about honesty here. Almost everyone on the planet “fudges” a little in their divorce. They inflate the value of what their spouse is getting and deflate the value of what they are getting. They jack up their expenses and lower their income. While doing that isn’t the best, it often goes with the territory.
On the other hand, there’s a BIG difference between “fudging the numbers a little” and outright lying. If you or your spouse are purposely hiding income or assets, and lying about it, don’t even waste your time mediating. Your mediation will go nowhere.)
Mediation Tip #7: If you get too emotional or are feeling angry or bullied, ask to take a break.
Mediation sessions may not be fun, but they don’t have to be total torture either!
If you feel like you are getting overwhelmed and you can’t think straight anymore, take a break. Go to the restroom. Take a walk. Breathe a little!
It is far better to stop and clear your head than it is to let yourself get sucked into an argument that derails the whole mediation session, simply because your emotions got the best of you.
Mediation Tip #8: Think about what your spouse wants and needs before you walk into the mediation session.
You know your spouse way better than the mediator (or your lawyer) ever will. It’s time to use what you know.
What is important to your spouse? What does your spouse want and need in the divorce? What is your spouse willing to give up?
If you know the answers to those questions you will be better able to trade something your spouse wants for something you want. I know it sounds corny, but you are going for a win/win.
Mediation Tip #9: Control your emotions.
I know. Easier said than done. Mediation is hard work, and not letting your spouse push your buttons when you are already teetering on the edge is tough!
The best way to handle yourself while you are in a mediation session is to make a strategy for calming yourself before you even walk in the door.
How to do that? One of the easiest techniques to use when you feel yourself being triggered by your spouse is to be quiet, breathe deeply, and count to five before reacting. It also helps to keep your end game in mind: focus on the big picture and try to let the small stuff go.
Mediation Tip #10: Keep an open mind.
There is more than one way to do just about everything in this world. The more you are fixed on having things done YOUR way, the less likely you are to get anything done at all.
For example, a lot of people get stuck because they want to get the house in their divorce. That’s fine if you have enough assets to allow one spouse to keep the house while the other gets something else. But if the house is the only valuable asset you have, and you can’t afford to buy your spouse out of his/her interest in it, you may not be able to keep the house! (Sorry!)
On the other hand, there are almost always more solutions than the obvious ones. Maybe you can live in the house for a year or two. By that time you may have the money to buy your spouse out. Or, maybe by that time your youngest child will have graduated high school and you won’t care about staying in the house.
The bottom line is that the more open you can keep your mind, the more options you will have. If you give yourself permission to explore all the available options, you will have a much better chance of resolving your divorce in mediation.
Is Divorce Mediation Right for You?
Divorce mediation is an effective and efficient way to resolve many divorces. But in order to get to the resolution you want, you need to understand both how divorce mediation works, and what you need to do to mediate your own divorce in the best way possible.
What’s more, using these divorce mediation tips and strategies should help you mediate your divorce successfully.