Mediation is without question one of the most powerful tools available to you in a divorce or custody case. Not only can mediation minimize your legal expenses, but it also gives you a say in the outcome of your case. Unfortunately, many people fail to recognize the importance of mediation, leading to a half-ass effort and a failure to prepare appropriately. If you go to trial, the JUDGE makes the decision. In Mediation, YOU get to decide
I feel that mediation is so pivotal that I have taken the time to put together these must-know mediation tips. I still learn something every time I mediate a case, so my mediation guide continues to evolve every year. I share these tips with my clients to help prepare for mediations, and now I will share these tips with you.
What is Mediation?
Mediation is a process in which an impartial third party (the Mediator) helps people find mutually agreeable solutions to their legal issues. For example, in Oklahoma divorce and custody cases, the issues can include custody, visitation, property and debt division, child support, alimony, and other issues.
The Mediator is there to identify issues, help you understand one another, and help you reach agreements. The Mediator succeeds if you walk out of the mediation with an agreement. You succeed if you walk out of the mediation with a deal acceptable to you. Whether you choose mediation or the court has ordered you to mediate, the decision to settle is always up to the parties. The Mediator has no authority to impose a settlement on the parties.
There are generally two types of mediation.
Early Settlement is a court-sponsored mediation program. Early Settlement is an excellent program I have used extensively over the years and have had great success getting cases resolved. I find this option to be most effective for low conflict cases where the parties can sit in the same room and, with the help of a mediator, work out the details of an agreement. However, not every case is the right fit for this option.
The other option is to hire a private attorney to serve as a Mediator. This is my go-to mediation method for contested property and debt division issues and higher conflict custody cases. The advantage of hiring an attorney familiar with the judges is that the Mediator can guide the process and let a party know if what they are requesting is reasonable or likely. Offering this “reality check” can go a long way towards steering a mediation towards a settlement. Unlike Early Settlement, it is not free and involves paying a mediator. Still, a successful mediation will save thousands in legal fees compared to taking a case to trial.
Choosing which option to use is very important. It can make a difference between resolving your case or going to trial. Therefore, I will help you decide which option is best for your particular case.
NOTE: Hiring another attorney to serve as mediator is entirely different from the situation discussed in this article. Both parties are still represented by their own attorney.
Enter mediation with an open mind.
After doing mediations for well over two decades, the most significant thing I have learned is that your attitude towards the mediation process will determine the odds of success well before the mediation ever takes place.
If you approach mediation with an all or nothing, hell or high-water mindset, you are wasting your time. You are wasting everyone’s time. You must be realistic. Understand that being open to a bit of give and take is not weakness; it is wisdom. Weakness is being a hard-ass for no other reason than just for the sake of being a hard-ass.
You will not get everything you want. Likewise, the other person will not get everything they want. This is true in both court and mediation. However, if the process succeeds, you will find a resolution you each find acceptable.
Have goals based on reality.
Here is the secret to mediating a family law case. The mystery attorneys spend thousands of hours and years of experience trying to figure out. Here it is:
The secret is knowing when the best option is to take the deal offered in mediation and when the best option is to take a case to trial.
Mediations fail when people cannot separate what they want from what is realistic. Therefore, your mediation goals must be based on reality and not on fairy tale endings. For example, just because you asked for something in your court filings does not mean it is realistic that the court would order everything you want.
Here is the good news: I know if the deal on the table is as good as it’s going to get, and I know when you should hold out for a better deal. If I think you should settle the case, I will tell you. If taking the case to trial is the best option, I will tell you.
You will not leave mediation with a best-case scenario. If this were going to happen, you would not be in mediation; the case would have already been settled, and the issue would have been resolved long before now.
Your goal should be to find a resolution that lands you with something that you find acceptable.
Don’t be a crusader.
People that approach mediation, or litigation, with the Crusader mentality are never happy in the end. Never. You will never feel a sense of vindication. Just not going to happen at the courthouse or mediation.
If you enter mediation with the idea that you are right and the other party is wrong, and your mission is to prove this to the world, the mediation will not work. This is because the Mediator does not care who is right. Instead, the Mediator cares about finding a solution to your problem that allows you to maintain control of the outcome.
It is also important to note that that this approach will not work at the courthouse either. The family law court is a court of equity. The purpose of the court is to resolve disputes.
Focus on what is best for the kids – not best for the parents.
Ensure you understand how to separate what is best for your kids from what is best for you. Of all the things on this list, this one is probably the hardest thing to do. Sometimes what is best for you and what is best for the kids are the same. Other times, there can be a difference..
Why should I care what the other party wants?
I often hear things like, “Why should I agree because I know they will just continue to act the same way,” “I’ve tried that before,” “That won’t work,” etc.
Use the mediation to discover what the other party really wants or really needs from you. I already know what some people are thinking: “Why should I care what they want?” Here is why:
1) Because learning this can help settle your case and save you a hell of a lot of money.
2) Sometimes, giving just an inch, an inch that’s inconsequential and not going to harm your position, can make all the difference in the world.
3) If both parties can get on the same page, it might pave a new path of understanding that will allow you to live in peace after your case is finished.
The goal should not just be to resolve your case. The goal should be to resolve your case in such a way as to limit conflict and have peace going forward. This leads to something else you need to know.
Legal solutions are not always life solutions.
“If you do what you’ve always done, you’ll get what you always got.”
No matter how awesome the outcome of your case, you WILL be miserable going forward if every day and every interaction with the other party is a battle. You may win the battle in court, but at the cost of losing the war, that is your future. This will have a profoundly negative impact on your kids and will also impact your future relationships. I deal with family law problems all day – every day. You can take it to the bank when I say your new spouse will grow tired of the constant struggle with your ex real quick.
The great thing about mediation is that you can craft an agreement where each party feels
like they got something important to them. When each party feels heard and
their feelings considered, it goes a long way towards minimizing future
conflict. As a result, your life will be far less complicated.
Bring a List
Mediation can be stressful, which leads to forgetting things. Therefore, you must have a list of issues to ensure that nothing important gets overlooked. If you don’t bring a list, you WILL forget something.
In Divorce Cases, we will prepare a Property and Debt Exhibit listing all marital property, the value, and your proposal of dividing the property. We will also prepare a Debt Exhibit that lists each marital debt, the amount owed, and who should pay each debt. We will also have a custody plan. No matter how good the preparation is, something will get overlooked if you don’t write it down.
Once an agreement is reached and the mediation concluded, that is the end of the road. The agreement is the agreement, and there is no going back and renegotiating the deal. Bring a list!
Should I agree to a bad deal just to settle?
Hell No! No one will twist your arm, coerce, or force you into anything you do not want to do. Any agreements are entirely voluntary.
I have pointed out why you should try to resolve your case in mediation and maintain control of the result. With this said, I am not at all suggesting that you should throw yourself on a grenade! Just because the Mediator suggests a possible solution does not mean you must accept it. You should never agree to something unreasonable just for the sake of reaching an agreement.
Understand you won’t get the best-case scenario, but you are not there just to get beat up. Again, you must be able to separate reality from emotion. Know the difference and make intelligent choices. Reach an agreement when you can. Tap out when you can’t.
I will be by your side throughout this process and tell you if the proposal in mediation is better or worse than the most likely outcome at trial. I can tell you when you are bending too far and when you are not bending far enough. Follow the above tips, and you will significantly increase your chance of a successful mediation. As always, contact me if you have any questions.
Copyright 2021 Pete D. Louden All Rights Reserved
Pete D. Louden is a family law attorney in Norman, Oklahoma. Since 1998 he has represented men and fathers in divorce, child custody, and child support matters with extensive experience in settlement negotiations, mediations, and complex divorce and custody trials.