THIS ARTICLE WAS ORIGINALLY POSTED IN FEBRUARY 2009. SO MANY OF OUR CLIENTS SEEM TO BENEFIT FROM IT WHEN WE SEND IT DIRECTLY TO THEM, IT SEEMED LIKE A GOOD IDEA TO POST IT AGAIN.
Many clients going through divorce mediation are concerned about their ability to speak up and negotiate for themselves in mediation, especially if they perceive the other person to be more vocal, more assertive, and/or more knowledgeable about their finances or the law. On the other hand, they know they are likely to have a better outcome if they can come to agreements in mediation rather than leaving the decision for a judge in court. A “win” in court might be an overall “loss” when factoring in the legal costs, the time involved, and the acrimony that can be created by having indirect communication, i.e. through the attorneys, where the message is altered as it passes from one person to the other.
Mediation is a “facilitated negotiation,” Despite the client or clients’ hopes that the mediator will tell the other person that their view is incorrect, the mediators assist the parties to reach their own conclusions about what is workable and acceptable in their case. They do provide information about the laws relating to divorce, including division of assets and debts, spousal support, child support, and how they share the time with their children. They will tell the parties what they “could” do, not what they “should” do.
Questions to ask the Mediator during mediation
There are questions the parties can ask the mediator to help them better understand the alternatives, including the range of what might happen if the parties did not agree and took their issue to court to be decided by a judge. Here are some examples:
1. If we do not come to an agreement in mediation and take this issue to court, what might a judge order? Is there a range of possible outcomes? If so, what is that range likely to be?
2. How have other couples handled this?
3. What are the potential long term effects or consequences of one approach or another?
4. How does ________’s living with a (girl or boy)friend affect the support amount that would be awarded?
Worry and fear is not uncommon for divorcing couples, and it often leads to ineffective communication.
Divorce is a stressful time. When people are worried or afraid, they often say things to their spouse that sounds combative (“Why should you get any of my retirement, I earned it!”) or threatening (“Well, I’ll just quit my job and then you won’t get anything!”). When there is a disparity in income, especially when it is a long marriage, both parties are concerned about their ability to have enough money to continue in the lifestyle in which they have been living. The trick for communicating in the above examples is NOT to react to the statement itself, but to think about what is “behind” it. What sounds hostile, might be based on fear. Responding in-kind just escalates the conflict and rarely gets the couple to a place of resolution.
Be Strategic
· Think about what you would like the other person to do.
· Think about the way you can say it so the other person can “hear” it.
· Approach him/her based on how he/she is, not how you would like him/her to be.
· Be prepared to give him/her something that he/she wants, so that he/she will give you some of what you want.
· If the other person’s initial reaction to a proposal will be “no,” give him/her time to think about it before responding.
· Say “no,” if you don’t agree, or ask for more time to consider the proposal.
Statements to make to the other party during or outside of mediation
Reflect back the other’s feelings:
I understand that that is what you would like.
I can hear that you don’t think you should have to share your earned assets with me.
You would like assets to be divided according to the pro rata share we contributed.
You wish this wasn’t a community property state.
You would prefer not paying spousal support.
You don’t think it is fair that I am entitled to a portion of your retirement.
It sounds as if you are concerned that you won’t be left with enough money to live comfortably.
After hearing a proposal that you would not agree to:
You would like it to be that way, and if I agreed, it could be that way. However, I am not willing to agree to (e.g. that amount of support because I want to receive the guideline support amount).
We can discuss your proposal among others at the next mediation session
Effective communication can be difficult any time there are differences, and especially during the divorce process, but it can be practiced. Write down some of these tips on an index card and keep it in your notes to refer to while you are at the mediation session. Keep in mind, too, that it is not only what you say but how you say it that affects how it is heard.
Wednesday, September 1, 2010
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