Thinking about divorce mediation? Excellent idea if you and your spouse have the shared goal of uncoupling amicably (or at least are committed to working together to dissolve your marriage in a fair and cooperative way) but have too many issues to resolve them on your own. Working with a good mediator has its perks — most notably you can cut down on attorney fees and costs, go at your own pace, keep the intimate details of your life a lot more private, and work toward an agreement that meets both of your needs (instead of relying on the court model, which is more of a zero-sum game). If you have children together, you may even be able to save or evolve your relationship such that you can transition into a new type of arrangement. As Belgian relationship therapist and author Esther Perel says, “Divorce is not the end of a family; it’s a reorganization.”
But mediation can have its perils too. Just because you’re not in front of a judge doesn’t mean you don’t need to be prepared. Spending a little time getting ready for mediation can put you in a much better position to come out ahead — or at least not too far behind. I’m not talking about screwing over your spouse; I’m talking about taking care of you. After all, who else is going to do that?
If you choose mediation, consider taking these six steps prior to starting mediation to help you make the most of the process:
Meet with a mediation legal coach (aka a lawyer who is friendly to the mediation process).
Mediation is an opportunity for you and your ex to create an outcome that is guided by but not bound by state law. You can decide what is best for you and your family by designing an agreement that is tailored to your lives and unique situation. A mediator doesn’t represent either of you but is invested in shaping an answer that meets your joint and individual goals. Because he or she isn’t directly looking out for your best interests, it makes sense to get someone knowledgeable to help. I’m not talking about your best friend or mom. I’m talking about someone who knows the game and can help you reach your best result — a legal coach.
The best legal coach understands the mediation process (and may even be a mediator his or herself). You don’t want someone who is all about litigation — if anything, he or she will frustrate the process and you’ll likely end up with a failed mediation and have to start over from scratch. Legal coaching is having a lawyer advise and direct you to the extent that you need. An attorney will explain the mediation process, listen to your priorities, intentions, goals, and concerns to help strategize your position for mediation (including developing creative, outside-the-box proposals), help you understand where you have leverage and exposure, and help you strategize how to respond to your spouse’s unreasonable demands and how to negotiate.
Often times legal coaches will require a retainer (a “deposit” of several thousand dollars toward your legal fees). At Levine Family Law Group and Hello Divorce, we offer a “pay as you go” service for mediation coaching. Your first 15 minutes are free, then you can purchase additional time in increments of 30 minutes, 1 hour, and 5 hours. That way, you can decide how much you want to spend, knowing exactly where you are with finances while still having an experienced lawyer on demand. We usually recommend you meet between one and three times with one of our legal coaches before you start mediation and then you may or may not need coaching between mediation sessions. Regardless of how many times you meet, your legal coach should always review your written settlement agreement before you sign it. Remember, your mediator is not charged with looking out for your best interests. You need to ensure that the agreement not only clearly articulates your understanding of the agreement, but it must also not have unintended consequences. For example, not specifying an end date for alimony payments could have unintended financial consequences down the road. You should make sure that the date that support will end is clearly stated in the agreement or if you and your ex are not ready to decide that now, you should at least agree in writing that you will reserve the issue for determination at a later date.
Choose your mediator wisely: Not all mediators are created equal.
Many of our clients meet with us even before they choose a mediator. Why? Well first off, they tend to like our recommendations (word of mouth is always the best source of referral). More importantly, they like to understand their case a little more before determining what type of mediator to hire. There are several types of mediators. After reviewing the relevant laws that apply to your case, you might decide that a mediator who relies almost exclusively on the law to guide parties toward resolution might not be the best fit. For example, if you have a ton of spousal support exposure as the “breadwinner” of the family or if you and your spouse had a financial arrangement that was different than what the law proscribes (but was never put to writing in a prenuptial or postnuptial agreement), perhaps you want to choose a mediator who spends less time looking at the law and more time working toward a solution that works best with the “facts.” Maybe instead of following the “legal calculation” to determine support, the supported party will agree to less support for a longer period of time or the parties will agree to live together for a short time post-divorce while each saves up some money.
When interviewing your potential mediator, ask these questions to help you find the right person:
- What is your style of mediation?
- Will you meet with my spouse and I in the same room or will you travel between two rooms? Do you ever hold sessions by phone or Skype?
- What does your availability look like? How far out are you scheduling meetings?
- Will you be preparing, filing, and processing our divorce paperwork for us or will we have to figure that out on our own?
- Do you take a retainer up front and bill against that or do you charge a flat fee? If so, how much? And what is your hourly rate?
- What type of mediation training or certification program have you completed?
Have an open mind (but also have limits) and listen carefully.
I’ve written a lot on this topic because we really want people to have a successful outcome in mediation. While technically this tip refers to what to do IN mediation (as opposed to before), it’s a good idea to start thinking about it now. Always expect that your ex will say things (intentionally or not) that are hurtful, untrue, or counterproductive. Trust that your mediator will be able to see through unreasonable requests. Take a deep breath when communications get heated. I get that it’s hard to negotiate in good faith when your spouse is unreasonable or overly emotional. That being said, listen closely and carefully. Do your best to stay calm and refrain from interrupting or attacking your spouse.
When each party practices good listening skills during mediation, settlement discussions stay on track. It can work to your benefit to empathize with your ex even if you don’t agree with certain statements or requests. You may find that he or she becomes more cooperative as a result of being “heard” by you. So, practice these communication skills ahead of time so they become second nature during mediation.
Don’t forget about self-care: mediation can be a grueling process.
First, how many of us have ever had to negotiate a complex financial contract or fight for what we think is best for our kids while ending one of the most important relationships we’ve ever had? Probably not many of us. And yet that’s what mediation is. The process requires a steep learning curve (especially if you have complicated financial issues) and all sorts of emotions can come up, including anger, sorrow, relief, fear, and disappointment. Good or bad, emotions are exhausting. Give yourself a serious break. (I know, easier said than done when all the other obligations associated with life creep up.) But it is possible. Sometimes just taking a break from those judge-y thoughts in your head by meditating for a few minutes or laughing your a$$ off at a comedy can make all the difference. Don’t be so hard on yourself. Maybe you forgot who you are and now you’re rebuilding yourself — if so, welcome back. To get started on your self-care plan, consider downloading our worksheet (via Hello Divorce) here. It’s free (hooray) and was developed in partnership with one of my favorite therapists and wellness consultants, Annie Wright.
Gather the financial information you need ahead of time (or very early into the process).
Assuming you have access to your financial documents, start gathering them now. If it’s your spouse who has them, ask for them. If your spouse is interested in mediation, he or she is probably not interested in hiding documentation or extending the process. You really can’t go into mediation prepared unless you have a good understanding of what you have and when it was acquired. So, for example, if you purchased a home together but your grandmother provided the down payment, you’ll likely want to get that money back. The best way to ask for that is to “prove” that that is in fact what happened with some sort of documentation or other financial statement. It’s not uncommon for people’s memories to become foggy when it comes to facts that could financially hurt them. The following is an abbreviated list of some of the documents you want to gather in print form or electronically. In the best case scenario, you and your ex can work together to compile documents in a Google drive folder or Dropbox folder.
- Federal and state tax returns
- Pay stubs
- W-2s and/or 1099s
- Partnerships and other business interests valuations
- Real estate property valuation (it’s okay if you don’t have this yet)
- Kelley Blue Book value on cars and trucks
- Savings, checking, money market, and CD account records
- Nonretirement investment statements for stocks, bonds, secured notes, and mutual funds
- Executive compensation records, including stock options, restricted stock units, or other executive comp
- Retirement account and pension statements
- Annuities, IRAs, and deferred compensation records
- Life insurance policies
- Accounts receivable records and unsecured notes
- Real estate loans
- Credit card and line of credit records
- Evidence of separate property contributions to assets
- Health insurance information
- Evidence of cost of extracurriculars, such as camp and other kid-related expenses
Determine your nonnegotiables.
What is it that you really can’t live without? What are you willing to give up so you can keep it? Maybe it’s your house. You don’t want to let go of it. It’s your biggest asset and it’s appreciating and you don’t want your kids to have to change schools. If this is you, what will you give up in exchange? Retirement benefits? Financial support? Assuming it makes sense financially for you to purchase your ex’s interest in the home, your house may be your nonnegotiable. But let me add one thing — I’ve been a divorce attorney for 13 years and If there’s one thing I know, kids are resilient and so are you. Divorce is not what destroys families; conflict destroys families. If you can avoid it to a large extent, you’ve got a very high chance of recovering and rebuilding finances and family — in less time than you think.
I invite you to think really hard about what truly matters to you so that you don’t prolong the divorce or incur more fees. Will the (insert item) really matter to you in 90 days? One year? Five years? Go with your instincts, they won’t let you down.
Whether you have one or two pesky issues that you and your ex can’t resolve or whether you would prefer to tackle everything at the same time (and with some help), mediation may be a great option if you and your spouse are cooperatively uncoupling. You deserve to play a big role in what your life will look like going forward. Mediation allows you to have a voice in the important decisions rather than leaving them up to some judge who knows very little about you (and even less about your needs and wants) and which can have long-term implications. But, whatever route you choose, I truly want you to have a happily ever after . . . just separately.