Before Starting The Mediation Process: Items For Consideration

items to consider before starting the mediation process

Before beginning the divorce mediation process, there are a number of items one should consider. Even if you don’t consult with a review attorney or financial professional before the divorce mediation process is started, one should give thought to the issues listed below. You might not be able to give a definite answer to some of the following questions, and your answers and position may change during the mediation process; however, it is still helpful to seriously ask yourself some of the questions ahead of time.

  • What would I need to feel satisfied with the outcome of the mediation?
  • What do you think the other party needs to feel satisfied?
  • If you can reach a good agreement in mediation, how will the agreement affect your relationship with the other party after the dispute is resolved?
  • What is your WATNA and BATNA: if you don’t reach an agreement, what is most likely to happen?
  • What is your best possible (realistic) alternative if you don’t reach an agreement?
  • What is your worst possible (realistic) alternative?
  • In most divorce situations, this means developing a clear understanding of the strengths and the weaknesses of your case before the divorce mediation.
  • How would you know if a possible agreement is better than the most likely alternatives?
  • As you compare possible agreements with your alternatives, consider the costs, time, and effort required, effect on your relationships.
  • What is the TOTAL value of getting the matter resolved cooperatively?
  • Ask your mediator to explain and create a roadmap of possible outcomes for you and your spouse.
  • How comfortable are you with the risks of not reaching an agreement, such as going to court?
  • Total Value comparison comes in handy in making this decision.
  • What would you need to feel comfortable reaching an agreement at the mediation session?
  • Is there someone you would need to check with before you finalize an agreement?
  • If so, talk with the mediator about the possibility of having that person attend the mediation session or at least being available by phone.  Independent legal review or advice is always a smart investment.
  • What might the other party say or do that would make you upset, and what might you say or do that would make the other party upset?
  • Think about what you can do to avoid getting upset and causing the other party to get upset.
  • What does the conflict really mean for you?
  • How does your conception of the conflict change, if at all, when you think about it from the other party’s point of view?
  • If the dispute affects the children, what do you think are your child’s most important needs and interests?
  • What issues do you and the other party agree about?
  • What issues do you disagree about?
  • Are there objective standards the parties could agree on that might help resolve the dispute?
  • What would you like to accomplish at the mediation?
  • What does the mediator need to understand to help you accomplish your goals?
  • What does the other party need to understand?

During the mediation process, you may hear things that you will disagree with. You may be faced with difficult questions. Keep an open mind and be willing to consider various options for settlement. It’s helpful to take notes and minutes of what was agreed upon, with the caveat that everyone can change their minds about some of the soft agreements reached during the process.

Remember, there is NO full agreement until all the “mini agreements” are reached. Most importantly, in a Connecticut divorce, the arrangements are not enforceable until the Judge makes the entire separation agreement a Court Order.  The Judge has to find that the Separation Agreement if fair and equitable to both parties in light of your specific circumstances.  Some judges in the State of Connecticut ask you if you think the agreement reached is fair and equitable to you?  The next question will be, do you also think it is fair and equitable to your spouse?

Although you may think that the other party is wrong about some things, you will be more successful if you at least try to understand the other’s point of view. Listen carefully to what he or she says and look for things that you agree on. These anchor points of agreement are the foundation for the “mini non-agreements”. The anchor points (or agreement) can result in an understanding of your views as well, and it will help you reach an agreement. If you disagree, it helps to be respectful toward the other party, which may cause him or her to treat you respectfully as well. Acknowledgment of one another’s positions and perspectives is the key to successful negotiations in reaching a mediation agreement.

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