When looking for an alternative to traditional divorce litigation, mediation is an attractive option for couples because it tends to be more cost effective and gives families the best opportunity to move forward in a positive manner post-divorce. Using a needs-and-interest based approach, mediation is a way for couples to try to reach compromise by way of problem-solving instead of positional negotiation. That being said, mediation, specifically financial divorce mediation, is not the right fit for every couple.
With more and more couples seeking mediation, it is critical to assess whether it is right for a particular situation based on the facts and circumstances of each case. Experienced divorce attorneys and mediators understand that certain factors lend specific types of cases to have a higher probability for success. When assessing whether a couple is a good fit for mediation, it is important to look to the pillars of the process to see the if the couples’ goals align with what the process entails.
So, who is a good fit for financial mediation?
- Both parties have a desire for confidentiality. This may seem like a no-brainer, but it is an important aspect of mediation. Communications, settlement offers, and mediator notes and communications are confidential absent specific extenuating circumstances. If both parties desire to keep their family dispute private and out of the public eye, mediation is a highly attractive option. This process can be highly appealing for high net worth clients, celebrities, athletes, or business owners, but this level of privacy is available to everyone through mediation.
In addition to keeping financial information private, it is also worth noting that with courts moving towards exclusively online filing and docketing, in the future more and more people may have easier access to historical online court filings. This includes people whose parents divorced when they were children. Parents don’t usually focus on what their children may see in court filings one day because they are so focused on the here and now and doing what they think is best for the children in the moment. With mediation, no pleadings have to be filed until the case is resolved, thereby preserving confidentiality around the totality of the dispute.
- The parties have good communication skills with each other. Mediation is a client-driven process. Even if lawyers attend the sessions (attorney-assisted mediation), they are not the ones leading the discussions and making final decisions. Clients need to understand that they will be expected to voice their own opinions, have agency in their divorce, and be the primary point person in the decision-making process. A divorce coach is an excellent option to help a client psychologically prepare for mediation and guide them on how to have a discussion if a client is unsettled by having to speak to the other party and voice an opinion during the session. But if a client prefers (or needs) to stand behind their lawyer and does not feel comfortable voicing their own opinion, mediation may be very difficult.
- The parties are not looking to achieve their best day in court on every single issue. If a client comes into mediation with the goal of achieving their best day in court on every legal issue, the mediation will likely fail. Divorce lawyers often say that if you want to achieve your best day in court on all issues, you are likely going to need to go to court. The purpose of mediation is to see if the parties can reach a global agreement that they both can live with going forward. An agreement that both parties can live with will not be an agreement that gives one party their best day in court on every issue. There will need to be compromise. The range of compromise is where attorney-assisted mediation can be extremely helpful because a lawyer in the session can assist the client in understanding the legal implications of different types of compromises, and how the agreements reached will be drafted and potentially interpreted in the future.
- The parties have the ability to be coached and educated in terms of what the law provides. One of the most common misconceptions of divorce mediation is that the law doesn’t necessarily apply, or if a party seeks to apply the law to the case, they are being aggressive in their desired outcome. That’s not necessarily true, especially in family law. Clients need to understand that there are certain benchmarks, norms, and formulas (for example, child support and maintenance guidelines), which come into play when discussing settlement options. Understanding that negotiations need to be born out of a standard of reasonableness and rooted in the law is a critical component to a successful mediation. If a party is using mediation as a negotiation process to disregard the law, the mediation will likely fail. However, this does not mean that if the parties are mutually aligned, they cannot come up with creative solutions to reach a desired outcome. The critical question is: Are the parties mutually aligned? It is the mediator’s job to facilitate the discussion to find mutual alignment wherever it exists, and then build upon that alignment to see if a global agreement can be reached.
- Both parties are transparent in terms of sharing information. In litigation, there are discovery tools available to lawyers in order to compel parties to turn over documents and information. These may include interrogatories, document requests, subpoenas, and depositions. These can be costly and time consuming. Often couples opt for mediation because they have the ability to exchange whatever information they need to make an informed decision informally. It is a red flag if, in mediation, one party withholds documents or makes it difficult for the other party to receive the information they need. Full transparency is the cornerstone of making an informed decision and the only way that mediation will be successful. Both parties should be willing to come to the table and share whatever information is needed for the other party to feel comfortable reaching an agreement. If information is not forthcoming, formal discovery tools will need to be utilized via litigation to ensure that the required documentation is provided.
- The parties are not seeking emotional justice in their divorce. This is one of the hardest concepts for people to grasp in divorce mediation. Correction: This is one of hardest concepts for people to grasp in divorce, in general. Divorce is a legal process and there is not much, if any, emotional justice in the divorce case no matter what route a couple engages. Everyone has different standards of what is “fair” and many times both parties walk away feeling like the other side “got away with everything.” If reaching an agreement is impossible because one party is seeking punishment or retribution, it is likely a judge will be needed to make a final decision. Parties seeking emotional justice and retribution tend to be clients who have difficulty making decisions because the options on the table do not fulfill the needs of emotional justice. A divorce coach or a therapist can be extremely helpful is assisting clients process the emotional aspects of the divorce outside of the legal mediation process so that clients feel empowered to make decisions despite feeling the need for emotional justice. It is not impossible to reach an agreement with parties who are seeking emotional justice if they can be properly guided on how to leave those feelings aside and focus on what they have within their power to move the process forward.
Financial mediation is not the right solution for everyone, but considering it as an option may give a family the opportunity to avoid litigation.