How can I make divorce mediation go smoothly?

The Mediator

Smooth mediation starts with the right mediator. Of course, this means someone with relevant training and experience in both the relevant divorce law and mediation. It also means someone with the right temperament. Most effective mediators maintain a calm but assertive temperament: calm enough not to stoke raw emotions, but assertive enough to be able to convince the participants they are being unreasonable.

One of the biggest signs of a good mediator is preparation. At the very least, both sides should be required to submit a written explanation of their opinion. The best mediators will talk to both sides ahead of time, going back and forth if necessary, to understand what the issues and the pressure points are. A good mediator in a divorce with financial issues will expect a list of all the assets and debts, each party’s opinion of the value of each asset, and the basis for that valuation.

Sandpiper normally does mediation in two parts. First, each side meets with the mediator for an hour or two and presents their case. The mediator may then give everyone homework, such as providing documents or appraising a home. In almost any divorce, the mediator will need a list and valuation of the assets and debts. Only after all this is finished does the mediator get everyone together and mediate the case.

The Participants

Start by being prepared. If your mediator hasn’t required you to provide a list of assets and debts, do it anyway. Be ready to explain the basis for your valuation of each asset and debt. If the issue is custody, come with options and alternatives for what you think is best for the children.

Take positions that are just aggressive enough. Some people go into mediation asking for the world, and the other side is immediately turned off and starts to believe that mediation is worthless because the other side is being ridiculous. On the other hand, don’t give your bottom line right away: keep some wiggle room. Each side will want to feel like they got something in the mediation, so let them argue you down. If you start with your bottom line, you’ve nowhere to go but out the door.

Don’t assume every issue has only two possible answers. Often the best settlements involve creative compromises that a court could never order. Try to be creative and open-minded in your solutions to problems. There is usually something for both sides to gain by coming to a resolution now rather than fighting in court. Think about what you really want and what your spouse really wants: maybe it is possible for everyone to get what they want.

Be realistic about what you can get through the court. What is the most likely result if the judge decides the issue instead? This is usually called the BATNA – Best Alternative To a Negotiated Agreement. Understanding your likely outcome in court helps you recognize a good settlement if you see one. If the agreement is better than your BATNA, then obviously you should take it. Try to understand what the other side can expect in court as well – don’t expect them to compromise for less than they can get in court. It’s a good practice to write down your BATNA so you know what to accept and when to walk away. That doesn’t mean you should aim to get just what you can get in court – aim for a bit more (what those trained in negotiation sometimes call an ‘Aspirational Value.’) But be ready to fall back to your BATNA if necessary.

Keep calm and view the mediation as a business transaction. Treat the other side with courtesy and respect throughout. It is probably the biggest business transaction of your life. Don’t let emotions mess it up.

The Result

The best agreements are usually those where no one gets everything they want. In any case, if you think you ‘won’ then you should probably keep it to yourself. You don’t want the other side to know you would have compromised for less: that just gives them motivation to try to back out.

Before everyone leaves, get your agreement in writing, signed by everyone. In Nevada, verbal divorce agreements cannot be enforced. Besides that, if there isn’t a writing, it is almost guaranteed that both sides will come out thinking they agreed to something different. If the mediator isn’t going to do a written agreement, then do it yourself. Mediation without a written agreement signed before everyone leaves is likely just a waste of time.

Successful mediation is rarely about convincing the other person that you are right. It is about finding a practical solution that both sides can accept. Careful preparation, realistic expectations, and a clear written agreement greatly increase the chances that your mediation will end with a lasting resolution.