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Mediation can help you get what you want in divorce and save money

There is no such thing as justice in divorce. You have to make your own justice, and mediation is an excellent way way to do it. Mediation is a negotiation that is facilitated by a neutral mediator. The mediator’s job is to keep you and your spouse focused on the task of splitting your assets and liabilities, dealing with the future support, making parenting plans, etc. However, the mediator has no power to make your decisions. You make your own decisions based on your needs. That’s why you can tailor your own justice in mediation.


Do get buy-in from your spouse

Mediation is voluntary so both you and your spouse have to agree to mediate. This means getting some buy-in to mediation. In divorce, there are only three choices: Litigate in court; use a collaborative divorce process; or mediate. In one major western city, the average cost of litigating a divorce is $100,000. To divorce in a collaborative process is $60,000. To work out everything in a mediation is about $10,000. Even if you and your spouse hate each other, the cost alone should help drive decision-making towards mediation.

Do know that mediation is negotiation, so be prepared

In mediation, you retain the services of a neutral professional mediator. The mediator cannot give you legal or financial advice. The mediator’s job is to help you and your spouse negotiate issues such as division of property, allocation of debts, support, parenting plans and the like. Your job is to be thoroughly knowledgeable about your financial affairs, the values of your major assets, your retirement plans, etc. You may need to retain an accountant to work through all of this with you.

Of course, you may also need to retain an attorney to give you legal advice. The attorney may also represent you in mediation. However, choose an attorney that is interested in negotiation, not litigation. Likewise, your spouse should retain an attorney interested in negotiation, not litigation.

Do get control of your emotions

In most states, the law sets forth how your marital affairs must generally be arranged. Most lawyers will tell you how the law works and can predict with high accuracy what a judge might do. The problem is your emotions and your spouse’s emotions. Divorce is not fun and feelings of hatred, rage, betrayal, abandonment, grief, and sadness are normal. Getting some counseling to help manage your emotions is important.

You cannot make good decisions about your future if you are highly emotional. You have to find a way to manage your strong emotions and the strong emotions of your spouse. A highly experienced mediator knows how to help people with strong emotions negotiate solutions to the various problems of a divorce.

Do choose a good mediator

Anyone can be a mediator. There are no licenses for becoming a mediator in most states. In choosing a mediator, choose a professional mediator who has gone to school and taken graduate courses in conflict resolution. Don’t choose a mediator who has taken a basic 40 hour mediation course unless that mediator has been practicing full time for at least 7 years. Experience counts. Google is a good way to find mediators in your area. Contrary to popular belief, you do not need your mediator to be an expert in family law.

Do educate yourself about the process

Learn how to negotiate. Negotiating a divorce settlement is not like buying a used car. Get out on the Internet and read as much as you can about the different kinds of negotiation and about divorce negotiation. Pay particular attention to learning about interest-based or integrative negotiation. This kind of negotiation means that neither you nor your spouse do not have to compromise much. It is very powerful in the hands of an expert mediator.


Do not be impatient or in a hurry

Mediation is a methodical process. It will not occur overnight. Be patient with yourself and your spouse. Mediation is much, much faster than litigation, but it will still seem like it takes forever. There will be times when the process seems like it is dragging on. When you experience that, you are most likely anxious. You will want to rush to the conclusion to rid yourself of the anxiety. That would be a mistake. If you can out-patience your spouse, you can sometimes get a better deal than if you rushed through the process .Patience is a virtue for a good negotiator.

Do not hire a junk-yard mean lawyer

Junk-yard mean lawyers with ferocious courtroom reputations are generally excellent advocates. Because they become so passionate for you, they easily lose their objectivity. That means they may be lousy negotiation advisors. Lawyers generally are not good negotiators, although they think they are brilliant. They did not study negotiation in law school and likely learned a primitive form of negotiation early in the legal careers. Their job is to argue your case and make life miserable for your spouse.

If you need someone to represent you because your spouse simply refuses to cooperate, then by all means hire the toughest lawyer you can afford. However, avoid this type of lawyer if you want a fast, efficient divorce through mediation. You will want a lawyer that really understands negotiation. Ask any potential lawyer where they learned to negotiate. If they hum and haw or bristle, you know that they are probably not particularly skilled.

Do not expect to come away whole and happy

You are about to lose half your wealth. As soon as you can accept this fact of life, the sooner you can be in a good mood to negotiate. You will be a lot better off negotiating the property split than letting a judge take a chainsaw to your assets. The judge will chop them roughly in half. You can craft a solution that meets your real needs. For example, you might not want the house. You could exchange your share of the equity for something else that is more useful to you.

Do not expect the mediator to do all of the work

You and your spouse have the power to decide how to settle your affairs, not the mediator. Do not expect the mediator to do all of the work. A good mediator will guide you through a process that allows you and your spouse to satisfy as many of your needs as possible. However, you have to be prepared to succeed.

Good preparation includes understanding all aspects of your financial situation, including what assets you own, what the assets are worth, who you owe money to, the nature and value of any retirement plans or accounts, how much you will need to live on after the divorce, what the needs of the children are, and so forth.

You should also prepare a game plan for your future. What do you want to be doing in 5 or 10 years? How can you negotiate your divorce to make the future happen the way you want it to unfold. If this sounds too hard, go to litigation or collaborative process.

Do not get angry

Anger in a divorce negotiation will hurt you, not help you. When you become angry, you lose the ability to think clearly. Your prefrontal cortex literally shuts down. Worse, it will not come back to full functioning for hours. Your spouse may trigger you, insult you, disrespect you, or ignore you during the negotiation. Keep your cool. Let your spouse become angry and upset and watch how his or her ability to make good decisions goes out the window. You can use emotions to your advantage as long as they are not your emotions.

Jumping cartoon

Mediation is an effective, relatively inexpensive way to settle divorces. However, you have to be prepared, be in control of your emotions, and be realistic about the results. Good legal and financial advice is important, but don’t hire a junkyard mean lawyer for negotiation. Tough lawyers are great in litigation, not in negotiation. Finally, hire an experienced professional mediator who has graduate training or many years of full-time experience.

More expert advice about Divorce and Separation Law

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Douglas E. Noll, JD, MA

California Lawyer of the Year, 2012 Best Lawyers in America, Lawyer of the Year 2014 Award-winning author, law professor, speaker, trainer, and mediator specializing in deeply intractable conflicts...

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