The first thing I tell my family law clients to do in preparation for mediation is to see the process for what it is: an opportunity. Mediation is a chance for both sides to present their views on the issues before them and to be heard in a unique way that can be prevented by more traditional legal paths. A resolution is often a meeting in the middle rather than one side “winning” and one side “losing.” With this in mind, it is important that the parties temper their expectations. If a client’s expectation going into mediation is “I’m going to get everything I want at the end of this,” that could be a set-up for disappointment.
However, if you recognize mediation for its strengths and for what it offers clients, it can be a positive experience.
First of all, mediation gives you agency and control in making a decision. You and your soon-to-be ex-spouse are making your own decisions through compromise and negotiation. You’re not handing that decision over to a judge to make for you. You don’t have to sit silently in your courtroom and watch your lawyer make your case for you–you get to speak and be heard.
Because you’re directly participating in the process, you are able to think about your priorities and craft a decision based on that. While a judge might consider what’s important to you in litigation, there’s certainly no guarantee of an outcome. In mediation, both parties can voice what’s important to them, and in a great number of cases, can come to a settlement that honors those specific and important requests.
When you’re well prepared for mediation, you think in terms of interests rather than positions. An interest might be “I need to send our daughter to college,” whereas a position might be “I need the money back that we invested in stocks last year.” Many people go into litigation fighting about positions, thinking that winning a position results in an interest being met. But there can be creative ways to meet these interests that don’t rely on winning –in our example, there might be other sources of money than the money invested in stocks, allowing their daughter to go to college while keeping the stocks from having to be liquidated.
Because of the way that mediation works, there’s often more of a sense of closure, and the satisfaction that comes with that, than you get in litigation. A good family lawyer can tell you based on past experiences how your case will go in court, but would never predict with 100 percent certainly what will actually happen.
That’s not to say that you’ll exit a mediation feeling fantastic–you’re more likely to feel a combination of happiness and sadness. As I like to say, “You won’t be shooting off fireworks in the parking lot, but you also won’t be doing anything to your soon-to-be ex’s car either!”
What mediation will do, ultimately, is make you feel like you’re being heard. It gives you a chance to state what’s important to you, and provided mediation goes well, allows you to have what’s important to you as part of a final decree, done without the time, energy and emotional costs of litigation.