Mediation. People hear this word and think that their divorce will be smoother, cheaper, and easier if they use mediation. Mediation is a great tool if used correctly. That being said, like using a hammer to try to install a screw, you can really mess things up if you are using an otherwise good tool for the wrong situation.
You need to ask yourself a couple of questions BEFORE beginning a divorce mediation. Then, if mediation is the right course of action, you need to properly prepare for the divorce mediation.
First Question: Is Mediation Right for My Divorce?
The Amicable Divorce. While it may seem counter-intuitive, mediation is often NOT the right first step for an amicable divorce. Especially if both spouses want the divorce to be relatively amicable, you may not need mediation and mediation may be an unnecessary cost. Although they don’t make the news, a large part of most divorce attorneys’ practice is these relatively amicable divorces where the clients work things out without ever entering a courtroom. The attorney helps the client gather the financial documents they need to figure out all their debts and assets. If the parties are amicable, this can often be done in an informal manner with the parties requesting and providing requested information to the other party without court intervention.
The attorney then advises the client as to how the Court would likely divide the assets and debts if the case went to trial. The majority of divorces involve the same type of assets. For example, a house, a couple of cars, some bank accounts and/or retirement accounts, and some debt. As such, unless there are unusual or difficult to value assets in a divorce case, an attorney can often advise as to a ballpark figure as to how the Court would likely divide the assets with a relatively high amount of certainty. If both parties agree that this is fair, the parties sign the paperwork necessary to complete their divorce through the Court without ever having to actually appear in the courtroom.
In fact, mediation can increase hostilities and costs in some situations.
Case in Point. Husband and Wife want to be amicable in their divorce. They pay a flat rate for a mediator to help them decide their case. Although the mediator is an attorney, the mediator can’t give legal advice to either party as they are neutral parties and can’t give advice to two opposing parties. Husband and Wife come into the mediation with some understanding of their assets and debts but neither sought legal counsel prior to the mediation and neither has legal counsel in the mediation. Neither party really has any idea what they might be entitled to if the case went to trial. During the mediation, the parties come up with some unusual methods to value their assets. They apply tax methods to the assets that the Court wouldn’t like us to value the assets in a divorce. The mediator tries to guide them but is limited because they can’t give advice to either party. The mediator’s job is to try to reach a consensus that goes along with their unusual preliminary agreements. Luckily for the husband, the mediation stalls without an agreement. However, the parties were close to reaching an agreement in mediation and now the wife has a minimum in mind as to what is the “fair” amount she would accept to resolve the case. In part because of the way the parties valued the assets in mediation, the minimum that the wife now believes is fair is significantly higher than what the Court would likely call “fair.” Once the parties seek legal advice, the husband realizes how close he was to a very bad deal. Unfortunately, now the wife is stuck on an unrealistic expectation as to how much she should receive and settlement negations between their attorneys fail. The Husband ends up with a just result but not until after about a year of litigation and thousands of dollars in attorney costs. The Wife’s situation is worse. She also spends thousands in attorney fees on top of never feeling that the divorce was “fair” as the Court did not value the assets in the manner discussed in mediation and thus valued the assets in a significantly lower manner for her share.
In this situation, mediation didn’t help the parties. Mediation cost these parties tens of thousands of extra dollars in attorney fees, destroyed their previously cordial relationship, and made what should have been a fairly straightforward divorce into a long and drug-out legal battle. The few thousand they spent on this mediation cost them thousands more and was some of the worst money they could have spent. If they would have gone through the common process of amicable divorces, they probably would have settled the case much faster, fairer, and cheaper for both parties. What the parties needed was education and advice from an attorney, not mediation.
On the other hand, if you have assets that are particularly difficult to value, mediation can be a good tool to use to find the middle ground without going to trial. For example, the parties had a child that passed away at a young age and both parties wanted the memory box that contains the child’s special items and keepsakes. There is no real value to the items themselves but the emotional value to the parties is very high. Once the parties are able to work out some of the other financials in settlement discussions, the parties stall out with who is awarded the memory box. A mediator is retained and is able to work on an agreement where the parties agree to copy what items can be duplicated (photos) so each has a party and then reach an agreement for the memory box to otherwise be transferred from one party to the next by certain dates so both parties have access to this precious item.
Another example where mediation can be very helpful is when you have a small business or other unique assets that is difficult to value. Depending on the value of the business, experts might be retained to give a valuation of the business. One party’s expert values the business at $1,000,000 as the expert predicts there will be increased earnings with the current economy. The other party’s expert values the business at $750,000 as they predict that the earnings will not stay on the same path as the economy and demand has changed from the previous years. Neither party’s attorney can advise their client with a high degree of certainty as to what the Judge will decide is the value of the business. It is likely that the judge will choose one of the expert opinions over the other. Each party has a lot to gain or lose depending on which figure the judge chooses. It is also possible that the judge will choose a number between the experts’ valuations if the case goes to trial. Settlement negotiations have stalled but both parties fear taking the case to trial in case the other party’s expert opinion is chosen. In this situation, the mediator may be a very good value for the parties to help them find a number that both parties feel is overall “fair” without the need for a trial and the uncertainty of what the judge may decide.
Second Question: Is the Timing Right to Start Mediation?
In most cases, mediation makes sense only after settlement negotiations have failed. Before beginning mediation, the client should know the assets and debts in the marital estate and have been advised as to what the range might be as to a “fair” settlement if the case was to go to trial. If one (or both) parties are being unreasonable, having a mediator talk with each party to play “devil’s advocate” could help the parties find the middle ground and resolve the case without a trial. The trial is expensive. If paying a mediator convinces the other side to find some middle ground, this is often money well spent.
Preparing for the Divorce Mediation
If you’ve decided mediation is right for your case and the timing is right, now it comes to how to get what you want in the divorce mediation.
Good divorce mediation is a neutral, law-driven environment. Both parties have an understanding of what range they may be awarded if the case were to go to trial. The parties want to resolve the case without a trial, but also don’t want to just cave. They want to feel like what they receive is “fair” if they are going to settle.
Divorce mediation can be the point in which the two parties meet in the middle and go their separate ways on terms they both agree to. Here are the tips to prepare for successful divorce mediation and get what you want without going to trial.
Seek Legal Counsel
Divorce mediation should almost never be approached without the help of an attorney. A local lawyer can advise you on your rights and on the correct procedure. Divorce mediation is often done AFTER the divorce action has been filed and given a court case number. The attorney can advise you on your rights and on the timing of when to go forward with mediation. The attorney can help you with the preparation for your mediation so that you go in confident as to your rights.
Know Your Rights
One of the most important parts of getting what you want in divorce mediation is to make sure that you know what you may be entitled to if the case goes to trial. Know your rights. Mediation isn’t helpful to you if you go in ignorant as to what you may be entitled to if the case goes to trial. You might think you are getting a great deal and actually be giving away the farm.
Know What the Other Party Wants
Compared to your attorney on the case, you are the expert on your spouse. Talking through what may motivate the other party with your attorney can help you best prepare. For example, you know the Court would likely give you the boat since you owned it prior to the marriage. That being said, you know your spouse really would like the boat and you don’t have the same affinity for it. Does it make sense in your case to open mediation by offering the boat if you get some other concession that is important to you? Will your spouse see this as an act of goodwill and be more cooperative in the mediation? On the other hand, will your spouse respond better if you wait to offer the boat until everything else is decided and offer the boat as a final olive branch to get the deal done? Talking through what may motivate the other party helps develop a winning strategy.
Most cases settle during settlement negotiations without the need for a mediator or a trial. If your case has reached mediation, then you have likely tried to reach an agreement and failed multiple times. If your plan in mediation is to continue to insist on what you asked for during settlement negotiations, then you are likely wasting your money on a mediator and should save your money to pay for a trial instead. Be open-minded. In many successful mediations, small further concessions by each party are what help them find the middle ground. If you gave up a little more in mediation but saved yourself the costs and uncertainty of trial, then you likely made the smart move.
Don’t Be Afraid to Go to Trial – if necessary
Mediation is great and helps many people find a solution without a trial. However, sometimes trial is a cheaper and faster solution. If you are dealing with an especially novel area of the law or the other party won’t agree to anything in the ballpark of what the Judge may likely grant you if you go to trial, you might just be wasting your money on a mediator trying to reach a compromise that is never going to happen. Don’t be afraid to end negotiations if it starts to look like the odds of what the Judge will give you at trial are likely better than anything the other side will agree to.
Keep in mind that mediations regarding parenting time issues are different than the financial mediations described above. For some basic information regarding custody and parenting time mediations under the Nebraska Parenting Act see: https://supremecourt.nebraska.gov/frequently-asked-questions-odr
Law Office of Julie Fowler, PC, LLO | Divorce Lawyers Omaha
Child Custody | Child Support | Divorce Lawyers Omaha
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