​Litigation Versus Mediation

Litigation-“What percentage of litigation run out of resources before a trial ever starts, rather than have a settlement result from strategic decision-making?”

 Litigation often forgets that these two people will be working together as co-parents for a number of years. The damage done to the future relationship is hard to undo.

Mediation preferences the needs of the children without neglecting your needs. This means your long-term relationship is likely to be intact so that you can co-parent effectively.

You may be friendly now and we would like to preserve whatever friendly feelings you have.

Every call and email can cost you. Wouldn’t you rather have the resources and learn how to look them up yourself, empower yourself and then make an informed decision? You can always consult a lawyer if you are struggling.

Many couples who litigate do not resolve the underlying issues and then go back to court to re-litigate the issue.

Mediation cannot solve every problem either, but there is now a process in place to make sure you get your needs met.

Why is mediation so much cheaper? The hourly fee is the biggest part. Both of you share the cost of one mediator, each hour. The fee is usually less than the hourly fee of an attorney, as well. There is less likely to be fighting, so the problems resolve faster and more efficiently. You also are applying negotiation skills on a level playing field, gaining valuable experience for when you have disagreements in the future. Mediators have mini legal centers and libraries at their office for you to help yourself.

Common Mistake: This time is ripe with ambivalence, mixed feelings. Part of you wants to just get it over with and maybe another part secretly wishes you could work it out.
“I just want to be done,” said about 20 million people. They walk away from money and homes and end up regretting it, because they could not handle their feelings. Rushing things will cause mistakes that may affect you the rest of your life. I encourage you to deal with your feelings wisely so you avoid this mistake.

Don’t throw your ex under the bus. Especially, don’t do this in front of your kids. Kids are protective of their parents and you are making them choose. That is unfair to them. Your kids should not be privy to your marital information, including money. No saying, “Well, if she’d pay more money, maybe we’d be able to go to Disney.” “Daddy is late with money again, I guess we can’t go out to a movie.”

My personal least favorite is calling CPS. In 20 years of marriage, you never called CPS on your ex. As soon as you are divorcing, they magically became an unfit parent? CPS gets more than their share of these and it is unfair. Don’t do this. If they are unfit or did something that warrants this, obviously you call. If you are using CPS to bolster your case, that is not only a losing strategy, it is dead wrong.

At this point in the process, you likely need more emotional support. Get it. Ask for and receive, help.
 
You are in control of the pace and direction of your mediation. You can change anything at anytime and can end mediation for any reason at any time. You can put the process on hold. We are in control of the “how” of talking it through- keeping you on track without taking sides.

How long is the process?
This, of course, depends on the complexity of your financial position and the issues you have between you…If you do more work outside the session, collecting info and sharing and discussing it, you will spend less time in the session. If you spend a lot of time dealing with the past instead of the future, it will take longer.

Cost?
Compare the costs of litigation to mediation. Imagine your lawyer charging, say $5,000 for a retainer and charging $250-300 per hour. Your ex is paying the exact same to their lawyer. Unless you know a ton about divorce law, you will have multiple calls and emails, asking for information and support. These cost money and add up quickly. Then your lawyer contacts the other lawyer and they negotiate at the hourly rate, for each of you. Once they agree and it goes to court, imagine how much you owe.  It can be really expensive!

​With a mediator, you know pretty much what you will pay- with very few exceptions. You are in the same room talking to one another, so no real surprises. Once you agree, you take the draft to your lawyer to ensure your needs are fairly represented. Then come back and polish it. Once more to your lawyer and back to the mediator to negotiate. Once you two agree and the lawyers approve, the agreement goes to the judge to approve or not. The lawyers and the mediator are invested in making sure the judge understands any creative solutions and the rationale behind those solutions, so that increases the likelihood of being approved. Wait and then you are divorced.

​Preparing Yourself For Divorce Mediation
My suggestion is that you review your expectations for divorce mediation to make sure they are conscious, reasonable and realistic.

Sometimes we have expectations we didn’t even realize we had.

For example, someone said after the meeting, “I realized I wanted you to agree with me, not my partner. I wanted my partner to recognize how right I was and then apologize to me. Can you believe I expected that?”  and there’s this:
“I was listening to persuade and convince my partner, not to understand him. I wanted reconciliation and to be back in the relationship. Instead, I got a different kind of closure. It surprised me and hurt worse than I thought it would.”

How?
People prepare differently. Make sure you prepare the best way for your particular style. My style is to read as many books as possible until I feel comfortable making a decision. I’ll read articles and delve deeply into it. I put myself emotionally into a situation via visualization, as well. Then, when I experience the situation, it is as if I can be more present. I don’t have to overthink, I can just be. Everyone does it differently.

Prepare yourself emotionally for mediation. It has some similarities to counseling except the goal is different. You are not trying to work things out to get back together, in mediation. You are preparing for your new life, new ways of relating to one another.

The forum of mediation helps you have a level playing field. If you had a hard time communicating, the mediator will help you move toward the mutually described goal- usually with the children’s best interests as the guiding light.
By this time, many people are “done” with their partner.

Emotionally exhausted, seeing the light at the tunnel, they let down… Some people stop fighting and just want to be done, just want to walk away and not have to deal with the other person. The danger in doing this is emotional reasoning, the giving up and not making great decisions. The decisions you make now are going to affect you for a long time. Give them the time they warrant. Don’t walk away from large amounts of money or things without really considering it. Five months from now and five years from now, you will look at the situation very differently than you look at it now.

Maybe bounce it off a trusted friend who has the benefit of emotional distance from your situation. Make sure your lawyer thoroughly reviews what you have agreed to in mediation, in order to make sure you are not giving away too much.

These meetings can be emotional. Tissues, crying, bargaining are common. Often the ambivalence comes back at the beginning. Almost no one wants a divorce. They wanted a happy marriage, more appreciation and satisfaction, but not a divorce. They are painful, messy and affect everyone involved.

No one wants to be married and trapped in a situation that is awful, either.

Prepare yourself for second guessing your decision. Your friends and family might be second guessing you.

Prepare yourself for guilt about hurting your children by separating, hurting your spouse, for not being able to see your children as often as you do now.

Prepare for possible anger at your spouse “for doing this to me.”  Letting go is one of the hardest things on the planet. You got this. You can do this.

Emotional self-care is vital right now. Many people struggle with sleep, losing weight and depression at this stage.

Please exercise, eat right, socialize with people who love you, get counseling and talk to yourself with love and respect. How balanced is your life- social, emotional, physical, spiritual, work, hobbies, family, mental etc.

Think about preparing for a marathon and then double the distance- that is what this process can be like. It is a slow, long process, this separation and divorce thing. You must take care of yourself if you want to be successful.

Think about children’s needs for consistency. Consistent rules and expectations, bedtimes, routines etc…

Think about your needs. Unmet needs are likely what got you here.

Think about your needs because they matter to you and ultimately you want your needs met and you are modelling this for your children. Ask for your needs to be met, not at the expense of the needs of others.

You are going to talk quite a bit about what works best for all involved regarding the children and when they stay with you, how you drop them off etc.

Put yourself in your children’s shoes. They are likely going to forget homework, sports equipment, toys, books etc. at your ex’s place. They’re likely going to, at some point, wake up not remembering what day it is or whose house they’re in. Some kids talk about this and some avoid talking about it like the plague. Put yourself in their shoes- they had absolutely no say in this, yet they are affected by it. It feels unfair to many kids, as if their needs do not matter.

Think about what is best for them in terms of spending time with each parent, communicating with each parent. Talk to friends who have been through this and ask them to walk you through how it affected the kids and the adults.

What strategies did they use to cope with their own pain and the pain of their children?

What schedule would work best for your children?

What options do you have?

What have other people done that worked?
 
Money is the next thing to consider, to emotionally prepare. Fill out the “Statement of Net Worth” a fillable PDF. It is loaded with info you have to provide and starting the process now is helpful.

One of the best things you can do in this process is listen. Believe it or not, this is hard during the mediation process and if you can practice it here, it will help in the future with co-parenting decisions. If you want to learn more about listening on your own-Ury- listening YouTube
 
Thoughts that are not helpful during this process:
“She made me angry.”
“He made me sad.”
Reason: You giving away responsibility for your emotions.

Remember-you are responsible for how you feel. The other person may influence you. If you feel a certain way, it is your responsibility for getting to that feeling. It is also your responsibility for dealing with your feelings. If you are angry, it does not justify bad behavior on your part. It does not justify punishing your partner. If you are angry, chances are that your needs were not met. Your needs, like your feelings, are your responsibility. Meet as many needs as you can and ask others to help you meet the others.
 
“He won’t meet my needs.”
Reason: You can request that someone else meet your needs, but ultimately your needs are yours. If your needs were not met, do something different to meet them, rather than blame someone else for not meeting your needs.
 
“She did that because …”
Reason: As soon as you start assuming something or guessing someone else’s motivation, you are on shaky ground, unless you are psychic. You probably knew I was going to say that. If you have a guess, take full responsibility for your communication, “My guess is that you did that because…” and then ask the person if you are correct in your assumption. That way you are owning it as a guess and calibrating your ability to mind read.

Being with your children
Let your interests, your purpose, your vision of being co-parents for the benefit of your children guide you.

This helps you create a new solution or choose a good option. Think of what needs your children have in this whole process and how out of the loop they were.

The divorce decisions are often made without their input at all.

Their needs do supersede yours. That said, your needs matter, as do the needs of your ex.
In co-parenting decisions, we take into account the needs of the children, parent 1 and parent 2. Ideally, we look for a solution that is win-win-win. Make your decision with the highest good of all as your goal. This is the best possible win-win (google “Nash Equilibrium” for more info on this concept).

If someone “loses” it affects everyone in this long-term relationship. Invest the time in negotiating to get the best possible long term co-parenting relationship. Above all, avoid the win-lose mentality.

Consider a transition time with the kids. They will usually resist going with the other parent. This does not mean they hate that parent or that anything bad is happening. Does not mean the parent is poisoning the children’s mind or turning them against you. Transition time in some families is going out to eat. “Every time I pick you up from mom’s place, we will have a sit down dinner together at a local diner. We will reacquaint ourselves and have no TV distractions. It is just time to catch back up. By the time we get back home, people are feeling okay.” “We never used to have transition time and when the kids got to my place, they were like animals. Their emotions were out of control, they were acting out and my patience ran thin within minutes. I knew they were testing their limits and my limits. I knew they were suffering and just needed reassurance and connection. Once I was able to listen for their needs, I was able to reduce the chaos immediately.”

1. Discipline is consistent between the two houses. We predict what ways they will break rules and why and work with them to meet their needs. Breaking rules just means they used a strategy that was unsuccessful in meeting their needs. We have similar expectations to limit their confusion. Kids benefit most from consistency of philosophy and carrying through. One parent is almost always harder and the other is almost always, by definition, softer. Kids will test boundaries more, making life a challenge, if you are not consistent. They thrive on consistency.

Why Choose Mediation?
Mediation is a businesslike, future-oriented, sensible and thoughtful way to settle disputes. It is all about having a good process, a system that has worked for thousands of people each year.

Mediation almost always hurts less, takes less time, focuses on the best interests of the children, increases the odds of getting along when the dust settles, and it tends to cost less, as well.

With a mediator, you are both in the same room, using one person who helps you communicate respectfully. You both work toward a solution and can use outside resources, as needed. You tend to do better when you realize you can achieve solutions together, even when feelings come up.
 
Less Expensive:

• Since the process takes less time, it is cheaper.
• Since you are using one person instead of two, it is cheaper.
• Since you are encouraged to work together for the benefit of your children, it is cheaper and less antagonistic, and you retain control of the outcome.
• $250 per couple per hour, not $250 per person per hour

 
How do I protect myself?
At the end of this process, you have the opportunity to have an attorney review your agreement, should you have any misgivings whatsoever. Come back to mediation, if needed.

At any time, you may consult with an expert – tax, legal or other and bring that information to the table for discussion.

When both parties agree, the agreement then gets sent to the judge who reviews it and you get notified when you are divorced.
 
Let’s be honest and direct with each other:
It is difficult if you separate and divorce; it is likewise difficult to stay together.

It is painful to take it to court and it is painful to do it yourself. Each option has a tradeoff- a benefit and a drawback.

Mediation tends to be the cheapest, least acrimonious option.

Mediation is a competent, protected process where parties are still protected legally.

From: http://www.nolo.com/legal-encyclopedia/divorce-mediation-basics-36180.html
 
Mediation is a multi-stage process designed to get results.

It is less formal than a trial or arbitration, but there are distinct stages to the mediation process.

Mediation is one of the most frequently used methods of negotiating a divorce settlement. In divorce mediation, you and your spouse -- or, in some cases, the two of you and your respective lawyers -- hire a neutral third party, called a mediator, to meet with you in an effort to discuss and resolve the issues in your divorce.

The mediator doesn't make decisions for you, but serves as a facilitator to help you and your spouse figure out what's best

The couple communicates to each other, in the same room, instead of through an attorney, increasing the likelihood of clear communication and a better relationship after the divorce. The role of the mediator is to guide the process and ensure an even playing field, which greatly reduces stress.

​Topics covered in a Divorce Mediation- Separation/Divorce Agreement: parenting responsibilities, time and money arrangements, tax concerns, property, retirement money, budgeting