Print Posted by Michael Dunham on 09/06/2017

What is Mediation and How Can It Affect Support?

What is Mediation and How Can It Affect Support?

“The judge has ordered us to attend mediation before we go to trial.”  What could this judge be thinking? If we could agree on everything, we wouldn’t be getting a divorce, right? If I could talk through all this stuff with my spouse, why would I even need a lawyer?

Mediation works in probably 80-90% of cases. That’s a staggering figure, but it makes sense when you consider the time, expense, and emotional energy that are being spent on your divorce case.

Think of mediation as an “assisted settlement negotiation”. You and your spouse will likely not be in the same room at all during this process; rather, the mediator will shuttle back and forth to keep the discussion moving. A good mediator is also creative, able to think of possible solutions that neither you nor your spouse would ever have come up with on your own. And always remember, you can only settle if YOU want to; neither the mediator nor anyone else can force you to settle.

Mediation can be a key part of your process, and can actually get you “across the finish line”. Take advantage of the opportunity.

Why Bother with Mediation?

Maybe you think your spouse is too hard-headed to make mediation worth your while. You may be willing to give in to just about every demand he has, just to get the case over and done with – but you know he still won’t settle. So why bother?

First and foremost, of course, you could be wrong. Your lawyer almost certainly has a story or a memory about a case he was sure wouldn’t settle, but then it did. Sometimes, all the other side needs is a chance to vent and feel he has “been heard.”  Maybe mediation will give him that outlet. Be open-minded about the process; you might surprise yourself.

Second, you can still learn a lot even when the case doesn’t settle. You can learn what is important to your spouse and what is not. That can be valuable information when you’re trying to prepare for trial. You may even be able to narrow some of the issues – if you agree on child support (for example) and property division, but not on child custody, then you at least know where you need to focus your energy for the trial, which can make it take less time (and cost a lot less).

Finally, if nothing else, be sure you document what offers you make in mediation, especially child support and spousal support offers.  As your mediator will tell you, what is said in mediation, stays in mediation. But, if you have to prove at trial that you were willing to settle a case in a certain way, you can use the settlement discussions as evidence that your spouse is the one who forced the parties to go to trial.  In some cases, this gives the judge enough authority to allow you to recover your attorney’s fees.

Preparing for Mediation

Preparing for mediation is something you should not rush through. That said, often the best way to prepare for mediation is usually to be as prepared as you can for trial.

Think through – and write down – what you think your best day in court probably looks like. Be at least a little realistic; a “total victory” is unlikely under pretty much any circumstances. Be realistic in your support expectations.  Then go through and write out various scenarios that are less in your favor, and ask yourself seriously if you could live with that result. Keep iterating through this process until you find where you are just too uncomfortable with the result – that is probably your “bottom line”.

Now, try and put yourself in your spouse’s shoes. What does “victory” look like for him or her? What aspects of that “victory” do you think are most important to your spouse? What aspects do you think are least important?

Don’t try to do all of this in your head. I’m a big believer in spreadsheets, especially for property divisions and trying to figure out what long-term support obligations look like. When I’m looking at child custody arrangements, I like to print out school calendars and try to figure out where the conflicts might come up. And I can’t remember the last time I went to a mediation without my laptop available, for modeling and calculations and such.  Don’t estimate the value of these preparations, especially as you plan any long-term calendars and support obligations.

An Overview of the Mediation Process

The mediation process might vary a little bit based on your jurisdiction, but usually the process is more-or-less the same.

Often a mediation will start with a so-called “joint session”, which will involve all the parties around the same table. The mediator runs this part of the mediation, and usually takes some time to explain some ground rules. Often there is a document everyone will sign by which they agree the rules of mediation have been explained to them and that they will attempt to mediate in good faith, even though they are not bound to settle their case. The joint session then typically continues with opening statements by both sides, usually starting with the plaintiff (the person who first filed for divorce).

After the joint session, the parties are typically split into separate rooms for “caucus” with the mediator. The key thing to keep in mind is that, with a few limited exceptions (to report something like child abuse or a threat to cause harm), everything said in caucus is confidential, and the mediator will not reveal what is said to the other side unless given express permission to do so. This is important, because it allows the parties to be more open with the mediator, sharing weaknesses they perceive in their cases without worrying that the mediator will run and tell the other side. That way, the mediator can more effectively “reality test” with both parties, to try and move them closer to a settlement.

Often the mediator will skip the joint session entirely. This is typical where there are allegations of spousal abuse, or where there have been attempts to negotiate before mediation (and thus the mediator is not starting from scratch). Don’t be too troubled by which party the mediator starts with or why, or how much time the mediator is spending with one party versus the other.  The mediator is a neutral party and must start somewhere. 

Conclusion

The majority of divorce cases settle, and most of these settlements are reached in mediation. If your case settles in this way, make sure that settlement is reduced to writing and signed by both parties as quickly as you can. With a little preparation and an open mind, you can make this process work for you, saving money on a trial and leaving more in the pot for any support needs. Good luck!


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Mike Dunham is a graduate of Emory University School of Law and has been a practicing divorce lawyer in the Metro Atlanta area for over 15 years. He has handled hundreds of divorce cases, the majority of which have settled in mediation. Mike is a sole practitioner based in East Cobb/Marietta, Georgia, and is the author of “Your Post-Divorce Compass: Practical, Real-World Advice for the Newly Single”. To contact Mike or for more information regarding his book, visit http://www.postdivorcecompass.com.

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