Here are some facts about mediation.
Before calling a lawyer about a divorce, most people have tried to negotiate with their spouse. Sometimes that works, and sometimes it is a miserable failure. If the discussions break down, the intensity of the conflict escalates.
When the divorce is filed, the judge orders mediation. Memories of conversations that evolved into shouting matches may spring to mind, and the parties may push away from the idea of mediation and say, “I tried to negotiate, but it didn’t work”.
How to negotiate:
Thousands of pages have been written about “negotiation techniques” – what to do, what not to do, what works, what is destined to fail, etc. Advice and conflicting opinions are everywhere, as indicated in the following quotes:
John Fitzgerald Kennedy
We cannot negotiate with those who say, “What’s mine is mine and what’s yours is negotiable”.
Marvin S. Levin
If you are planning on doing business with someone again, don’t be too tough in the negotiations. If you’re going to skin the cat, don’t keep it as a house cat.
Adam Smith Man is an animal that makes bargains: no other animal does this – no dog exchanges bones with another.
Common mediation question
You tried to make a deal and it didn’t work. are there reasons to think negotiating in mediation will go better?
The answer you are looking for:
Yes, due to the following reasons:
- Nothing is going to happen unless you agree to it.
Mediation is a negotiation process, and the objective is an agreement. If you don’t agree, there is no deal.
- The mediator (not your spouse) will control the negotiations.
Generally, the mediator will place the parties in separate rooms. The mediator will move between the rooms to conduct the negotiations. You don’t need to speak to your spouse unless you think it will be helpful and the mediator agrees.
- Discussions between you and your lawyer are confidential.
You are free to talk with your lawyer about all the issues in your case and your lawyer’s advice about the negotiations – those discussions are covered by the attorney-client privilege.
- Mediation negotiations are confidential.
The mediator will inform the judge that either the parties made an agreement or they did not make an agreement. All the details of the negotiations remain confidential.
- Everything is on the table.
Negotiations often fall apart because the focus of the parties is too narrow. Each party usually has a priority issue at the top of his/her negotiation list. If a party feels that their spouse is not dealing with that priority issue, the negotiations break down and all the other disputes remain unresolved. The mediator helps the parties define the primary issues and the secondary issues – everything is on the table.
- Negotiation is not a zero-sum endeavor.
When conflicts become intense, the spouses tend to think of themselves as being “right” and the other spouse as being “wrong”. That leads to an “all or nothing” approach to negotiations and failure to settle the case.
Mediators are effective negotiators because they understand how to analyze the issues and areas of conflict from both sides. By helping each party define and prioritize the issues from the other party’s perspective the mediator can move the negotiations away from “right” versus “wrong” and toward a settlement.
Your divorce case can be settled with the help of an experienced lawyer and a seasoned mediator.