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Six Rules to Success in Divorce Mediation

As chaotic as divorce may seem, believe it or not there are some tried and true rules for having a successful mediation. Below you will find six rules to keep in mind so that your divorce mediation sessions can go as smoothly as possible.

Rule #1 - Remember that "Winning" has a Cost

As a divorce mediator I often find myself reminding the parties that coming to an agreement in mediation is far less costly than going to court both financially and emotionally. I refer to what I like to call the "$25,001 question" as estimates I've read put going to court to resolve a single issue at around $25,000 therefore that issue better be worth $25,001 in order to make it worth your while. On top of that, going to court is ugly, draining and stressful and can really take its toll on those involved. That's where divorce mediation comes in since we can all sit down in the same room and work out a solution together without having to go to court. Remember: this is your divorce and you need to decide what you're willing to give in order to get. Which brings us to Rule #2.

Rule #2 - Remember to Clear Away your Mental Clutter

There's no question divorce can make you temporarily insane as emotions are running high and feelings of anger, hurt or jealousy are bubbling just below the surface. It's natural for human beings to seek out information that reinforces what we already think anyway so as hard is this may seem, the key to success in divorce mediation is to clear away what your preconceived notions of divorce may be. We've all seen the same movies in which divorce is made out to be some horrific battle which ends in the mutual destruction of the parties but in reality in New Jersey that only happens about 3% of the time. That means by using divorce mediation you have a 97% chance of settling your divorce before you wind up in court! Think about it: if you were told you had a 97% chance of winning the lottery, would you play? Of course you would! So that's where divorce mediation can really come in handy. By letting go of your preconceived notions of what a divorce should look like, you can design a memorandum of understanding that meets your specific needs.

Rule #3 - Always be Prepared

Divorce mediation requires preparation in order to have a good result. To assist the mediator, you should provide whatever documentation he or she asks for in a timely and organized manner. The mediation process requires it and we find it extremely helpful if these items are organized for ease of review. Handing the mediator a large box filled with random papers will only cause confusion and delay. Next review everything you send to the mediator. Being familiar with your finances is a great way to prepare and by doing so you'll be able to (a) have an intelligent conversation in mediation and (b) have a better understanding of what you'd like to get out of the mediation.

Rule #4 - You've Got to Give to Get

Divorce mediation is a search for a fair and equitable solution to your dispute so you need to realize that compromise is key. First be open to potential solutions that you may not have previously considered. Second don't be afraid to ask for time to consider something before deciding. When it comes to the actual bargaining process, there are three things you should always have in the back of your mind:

  • Your ideal position - this is the option that provides you with the greatest gain.
  • Their ideal position - this is the option that provides you with the least gain.
  • The bottom line - what you know to be a reasonable compromise.

By keeping these three points in mind you can enter a negotiation understanding the best and worst case scenarios and have a good idea what a realistic position might be. Keep a mental note of how many times you received your ideal outcome so that when it comes time to compromise, you may be willing to give the other party their ideal outcome to keep things fair and balanced. Like I said above, you've got to give to get and having an understanding of which issues are most important to you will allow you to stick to your guns on the ones that matter and compromise on the ones that don't instead of making every point a contentious battle.

Rule #5 - Out With The Old, In With The New

It's easy for any of us to get caught up in old unhealthy patterns and it's especially true for couples who are in front of a divorce mediator! Going through such an emotional process as divorce mediation will make anyone a bit edgy but it's up to you to recognize that falling into the same emotional traps isn't going to help either of you move forward. Now I'm no new age scholar but there is a great technique called mindfulness that says if you acknowledge an old behavior and give yourself permission to stop it instead of getting angry with yourself for doing it, you will be able to move past it quicker and develop a new, healthier way of acting. By being mindful that you're sitting in front of a mediator, you are afraid and that this is not where you thought you'd be when you got married, you'll be able to let the fear pass through you and make better decisions.

Rule #6 - If You Don't Have Anything Nice To Say

Mom was right: watch your mouth! The best weapon that I know of is not a gun or a knife but rather your tongue as words can cause more harm than a bullet. When presented with a stressful situation such as divorce, it's easy to fire off a jab or two when you're still trying to get out of your same old patterns.

Some helpful techniques to consider:

  • Say "I" instead of "you" - focus on what you think instead of pointing out what you think is wrong with what the other party stated.
  • Say "help me understand" instead of "are you out of your mind!" It can help you gain clarity by asking the other party to explain their position as one of two things usually happen: they'll either clarify any misconception you had and you'll feel better agreeing or they'll realize how their position may seem undesirable to the other party and change it.
  • Try phrases such as "I appreciate what you're trying to do" or "while I agree with most of what you said, there is one area I'd like to discuss." I find that many of my clients have spent so many years arguing they can't see there are things they can agree on so the small things trip them up. In divorce mediation, it's no exception.

Most of all remember: divorce mediation is a negotiation process that requires compromise from both parties in order to succeed. By following these six rules you'll be able to design a settlement that both of you feel is fair and equitable and save yourselves significant money, time and headaches in the process.


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