Mistakes in Mediation

If at all possible, it is preferable to come to your own resolution rather than having a trial. You are more in control of what things are at issue. Especially when court time is in very short supply, mediation is a great alternative to going to court. It does cost money to hire a mediator, and pay your attorney, but if it is successful, it can save you money, time and emotional stress.

However, mediation isn’t just a formality, you have to prepare for a mediation just as you would prepare for a court trial. You have to think about strategy, goals, and how to best prepare to have the best chance of getting to an agreed upon resolution. Mediation relies on coming to mutual agreement. If you want to succeed in coming to agreement, avoid these mistakes.

  1. Spending a dollar to save a dime. When you are in mediation, you need to always be aware of the relative cost of an issue. If you are arguing over a $100 table, but you spend $500 of attorney fees to do it, then you are spending a dollar to save a dime. Sometimes the dispute can take on meaning beyond the financial benefit, such as if that table was a gift from your great-grandmother, but make sure you are not arguing out of habit over something that has relatively little economic value.
  2. Interrupting your spouse in mediation. Mediation should be structured in such a way as to allow both parties to speak uninterrupted, and for each party to be heard in a respectful manner. If you can’t do that, then the mediation stops rights then and there, because the other party doesn’t need to be there, and can walk out if the process feels bullying.
  3. Arguing with your spouse in mediation, or speaking to your spouse in a demeaning way. If you are carrying on the type of argument that ended your marriage, it isn’t going to make progress towards resolution if you keep repeating the same mistakes. You can decide to end a marriage relationship, but you still need to get resolution of the issues involved in ending a marriage. This isn’t a continuation of a marital argument, but a business negotiation, and should be treated as such.
  4. Expect the mediation to be done in thirty minutes. As a litigator, it is easy to feel impatient with the pace of a mediation. It is not uncommon to sit and talk with your client for two hours while the mediator talks to the other party. In court, things are more compressed because of the rules of evidence, but in real life, people need time to process their thoughts and process new ways of looking at their issues, and that takes time.
  5. Talking down to the mediator. If you view the mediator as someone without power because the mediator is not going to decide things for you, you have failed at mediation before you even begin.
  6. Failing to consider post-divorce expenses. If you are caught up in the heat of a divorce, the only facts that are going through your brain is what you know, especially when it comes to finances. You may want to keep the large house because you like it, or you don’t want to move, but if you can’t afford it, wishful thinking that you can keep the house can stall or stop any movement towards agreement. The same is true for keeping cars or vehicles that are beyond your budget after the divorce is over.
  7. Overplaying your hand. If you say that you are doing something for the benefit of the other person, or the benefit of the kids, but it is really about what you want, the mediator gets that, the other side gets that, and rather than bluffing your way into what you want, you lose credibility. This is particularly true when it comes to parenting time or custody. People often will phrase that what they want is “really best for the child” when in fact, it is more about what the parent wants.
  8. Only listening to the best case scenarios from your attorney. Attorneys should always be presenting the relative risks and rewards of taking any particular position, ranging from the best case scenario to the worse case scenario. If your attorney tells you that given your facts, your range of spousal support is going be between $4,000 per month to $6,000 on a really good day, don’t take a position that you will only settle for $6,000. You need to understand that you are not going to get everything you ask for in court. In fact, if you are successful on one issue, the judge is likely to offset that with a concession to your spouse. Understand the risks.
  9. Viewing a mediated settlement only in terms of immediate issues. This isn’t just another step in a series of discussions or arguments. The purpose of mediation is to come to resolution on all issues. Come prepared to listen, to discuss, and know where you are willing to compromise and where you absolutely cannot compromise. Similarly, don’t give in on long term issues because you just want resolution in the short term. You will wake up six months later wondering what you were thinking when you made that agreement.

The best way to succeed in mediation, which allows you more input and control over resolution of your issues in your divorce, starts with not making obvious mistakes that cause you to fail as soon as you begin. Come to a mediation ready to succeed in getting agreement, if agreement is a reasonable compromise for you, or at the very least, hurts both parties equally, but allows you to move on.