If you are a regular reader of this blog you already know the value of divorce mediation, as compared to plunking down a big retainer for a divorce lawyer, trying to DIY it or burying your head in the sand. “But,” you say, “you’ll never get him in to mediation.” Or, “there’s no way I can mediate with her—we’re just too far apart.”
As mediators, Tammy Ferreira CDFA(tm) and I are trained to handle objections, and we can usually get even the most stubborn parties to resolve the matter. The magic happens when we show the person that a settlement actually benefits them. In mediation we focus on solutions that benefit both parties. These benefits can be big—thousands in attorney fees, staying away from stressful court appearances, or just being done.
Often more than half the battle is getting the other person through the doors of our mediation office. Here is a two-step method that will work most of the time.
Step One: Become a Mediation Nerd.
My now ex-wife announced that she was seeking divorce 10 years ago, and I knew nothing then. I was fortunate to have a friend who taught one of the high conflict classes the courts order when divorcing parents can’t get along. Here’s what I learned:
- Realistically, a case of average complexity will cost about $15,000 to $20,000 for each lawyer, and I met people in the class who had spent well into six figures. Our average mediation costs about $4,500 plus your court filing fees.
- Most cases require multiple “Request for Order” hearings that are costly and upsetting. Declarations are filed detailing all the nasty stuff you know about each other in a public record that anyone can see. Mediation is a completely confidential way to divorce that keeps you out of court and out of the poorhouse.
- Lawyers have a built-in conflict of interest. It’s in both of your interest to resolve the case without court, but your lawyers make more money if they keep you fighting. Mediators’ main interest is in resolving conflict and finding solutions.
- In mediation you can explore solutions that benefit both of you.
- If for some reason mediation doesn’t work, you can always go the court route.
You know what it’s like to talk to a nerd. For example, watch how excited your tax accountant gets talking about how he can use the tax code to save you money. A passionate advocate is an effective advocate.
Step Two: Be a Broken Record.
I prefer voice communication when discussing these matters, though this may be difficult at your stage. I find that if I can get the other person in my office or on the phone, I can usually get them to come in. I am the world’s biggest mediation nerd, after all.
The big mistake most people make is allowing the conversation to stray into the details of the divorce, such as how you will share the children or the financial arrangements. Our advice: don’t bring up any issues in your case. Your sole objective is to get them in to the mediation process. If you’re as old as I am you remember vinyl long-playing records. When broken, they would skip, and repeat a certain phrase or lyric over and over again. Be a broken record by returning the conversation to the benefits of mediation. Here are some examples:
Spouse: I want 50-50 custody of our kids. That’s what’s fair and even if I go to mediation I won’t accept anything less than 50-50 custody. (Note—you may be totally opposed to the 50-50 idea, but it’s best to acknowledge that it is a possible outcome if your goal is to get your spouse in the door.)
You: Fifty-fifty custody might be a great way to share the children. Let’s talk about that in mediation.
Spouse: I don’t care what happens. I’m not paying you alimony.
You: It may be that you don’t owe any alimony. The mediator can help us decide, and if you disagree you can always get another opinion from your own lawyer.
Note that in the above examples you acknowledge that their proposed resolution is not out of the question. Then you make the record skip back to how great the mediation process would be. This is not the time to stake out your positions in the case, as tempting as that may be.Remember to stay true to the mission—getting your spouse to see the mediator. It is important to deal with that person’s fear of loss, often the biggest obstacle to getting a party through the mediator’s doors.
Mediation is the single best method of getting your divorce. Ask any divorce attorney how they would handle their own divorce case, and if they’re honest, they’ll tell you to settle quickly and avoid going to court.
Hoping this helps you to achieve your post-divorce dreams, I urge you to…
Love your family,
Protect your finances, and
Reach for your future!
Thomas D. Ferreira, Esq.