by Todd W. Stevens, Esquire
The power of suggestion. Advertisements are built on it. Politicians (yuck) trade on it. Friends rely on it to make everyday decisions. And the divorce mediation process uses it to broker settlements in divorce cases. There’s nothing wrong with that – settling a divorce case with minimal court involvement is a laudable goal in any divorce. The trouble, however, is that people in divorce cases are often highly emotional and overly susceptible to suggestion in the mediation context. Suggestion reaches the level of misconception. As a result, vulnerable people enter into agreements at mediation that, when viewed from afar, don’t serve their interests very well. Some common misconceptions are discussed below.
“Suggestion reaches the level of misconception. As a result, vulnerable people enter into agreements at mediation that, when viewed from afar, don’t serve their interests very well. “
Misconception #1 – You Must Settle All of the Issues in Your Divorce At Mediation
There’s a basic tension in divorce mediations that you should be aware of.
On the one hand, mediation is your chance to try to resolve issues in your divorce. It’s your mediation and you are in control. You are not required to settle any issue at mediation if you are not comfortable doing so. There’s no penalty, no negative consequence, no punishment for not reaching an agreement. Rather, the mediator merely reports the case did not settle and the court schedules a thirty minute temporary hearing. While the mediator typically makes all of this clear at the mediation, it often difficult for people to remember this in the heat of the moment.
On the other hand, the mediator’s job is to settle the case. S/he will remind you that you will have to go to court if you can’t settle the issues at mediation. Court is right up there with public speaking as an activity most people seek to avoid at all costs. Further exacerbating the problem is that people have difficulty saying no. They want to be seen in a positive light, especially by the mediator – a person they perceive as an authority figure. Add the fact that the mediation frequently occurs at the courthouse and you have powerful suggestive forces pushing you to settle, none of which involve a rational calculation of your interests.
So, how do you dispel this misconception at mediation? First, before attending the mediation, make a list of the issues that will likely be addressed. Think about those issues in the context of where you want to be in ten years. By taking the “long view”, you gain a measure of objectivity that is absent from the emotional turmoil that characterizes most divorces. Having thought about where you want to be in ten years, formulate positions, or proposals, that get you where you want to be in ten years. At mediation, be willing to discuss these issues, but don’t stray from your comfort zone. Any proposal that your spouse ties to a time deadline for acceptance should be viewed with great skepticism. Finally, insist that any agreements reached are tentative and subject to review by a lawyer or other person you trust. This gives you the cooling off period you need to sort out a rational decision from a misconception-based decision.
Misconception #2 – The Marital Mediator Will Make Sure Any Agreement is Fair to Both Parties.
One of the most common misconceptions held by unrepresented parties is that the marital mediator will make sure any agreement is fair. It’s easy to see why many unrepresented people believe this. The mediator acts much like people imagine a judge would in the courtroom. The mediator listens to both parties’ concerns, offers solutions, and counsels each party on what is reasonable. The mediator often offers his/her opinion on what the court would do with a particular issue. Finally, the mediator has superior knowledge than either self-represented party .
While marital mediators certainly try to make sure any agreement is fair, it’s important to remember two things.
First, this is your mediation. The marital mediator’s role is to facilitate a settlement between the parties, not judge the propriety of the agreement – that’s the court’s job upon submission of any agreement. In fact, if both parties agree to a settlement, then fairness is largely irrelevant. Sound scary?
Second, what a marital mediator thinks is fair might not be what is legally fair or appropriate. Alimony, child support, property division, health insurance, parenting, etc. are all legal concepts derived from legal statutes. Yet, the marital mediator often is not a lawyer (ask them). While they receive training, non-lawyer mediators are not qualified to offer legal opinions as to what is fair, or what a court is likely to do with a given issue. In fact, non-lawyer mediators have never litigated family law issues and have never stepped foot in a courtroom to represent a party in a divorce case. Is it wise, then, to base your settlement on his/her opinion of what is fair?
The way to avoid this misconception is obvious. Either represent yourself and hopefully strike a fair deal or hire an experienced divorce and family law lawyer to review any settlement prior to you definitively accepting it.
Misconception #3 – The Mediation Process Produces Helpful Evidence for My Case
From a lawyer’s perspective, marital mediations are fascinating. They offer a small window into the dynamics of the marriage and allow the lawyer to corroborate or disprove many of the assertions previously made by the client in private. Spontaneity and high emotion cause both parties to say and do things that would aid their respective cases at a subsequent hearing.
Clients routinely want these statements or actions brought to the court’s attention. They are disappointed to learn that mediation is confidential. The marital mediator cannot be called to testify and his/her notes cannot be introduced into evidence. The parties behavior, statements, and settlement offers similarly cannot be used in court. However, the cloak of confidentiality usually works to the benefit of the parties, by allowing them to move the ball forward without fear of creating damaging evidence in the process.
Contact the T.W. Stevens Law Firm and We’ll Help You Dispel Misconceptions and Achieve a Fair Settlement at Mediation