How to Prepare for Mediation in Divorce & Child Custody Cases

Mediation is a wonderful opportunity to resolve your dispute without throwing your case on the mercy of a judge. In fact, courts in North Carolina and South Carolina require mediation for most divorce and child custody cases.

In this episode, your host and guide, Attorney Leigh Sellers, discusses the benefits of mediation versus litigation and outlines how to best prepare yourself for your mediation.

If you enjoyed this episode find out more about mediation and other litigation alternatives in the episode How Do I Stay Out of Court?

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The insights and views presented in “Welcome to Splitsville” are for general information purposes only and should not be taken as legal advice for any individual case or situation. Nor does tuning in to this podcast constitute an attorney-client relationship of any kind. If you’re ready for compassionate and reliable legal guidance on your journey through divorce, contact Leigh Sellers and her team at http://www.TouchstoneFamilyLaw.com

Read Full Transcript

Announcer:                            [00:00]                       Hello there. Going through a divorce? Considering one? Sorry to hear that but here you are. Welcome to Splitsville. You’ll find Splitsville to be a pretty unique place. A new world really with its own rules, its own expectations and in many ways, its own language but don’t worry. You have a knowledgeable guide along the way. A family law attorney with three decades of experience under her belt and now, here she is, your host and guide Leigh Sellers.

Leigh Sellers:                         [00:37]                       Hi everyone and thanks for tuning in to another episode of Welcome To Splitsville. I’m your host and guide, Leigh Sellers, founder of Touchstone Family Law and in this episode, I’ll be answering another question that many newcomers to Splitsville have, mediation. So let’s dive in. Mediation is a wonderful opportunity to resolve a conflict without resorting to a third party making the decision and in most cases, in both North and South Carolina, even parties that have filed a lawsuit are going to be compelled by a court rule to go and attempt to resolve the case themselves. So mediation is preferred by almost anybody who truly understands what the alternative is. And if you haven’t been through a contested litigation, it may be a little bit hard to understand what you may be facing if you don’t resolve your case prior to appearing in front of a judge, but for everybody else, the court staff, the judges and the attorneys, we do know, so we all encourage our parties to go to mediation.

Leigh Sellers:                         [01:53]                       I think various attorneys and various clients approach the preparation for mediation differently and I do think that mediation is more successful the more prepared you are. I admit as a busy attorney, I may not be 100% consistent in preparing my attorneys and clients, even in my office, about mediation with the amount of time necessary. So let’s take an opportunity to really talk about what you can do to prepare for your mediation. Regardless of what advice you’ve been given by your attorney, let’s make sure that you have all the tools you need for your mediation to be successful.

Leigh Sellers:                         [02:31]                       So one of the first things that you should do to prepare for mediation is to make sure that you understand what’s going to happen at your mediation. It’s going to differ from situation to situation so make sure that you set an appointment for a phone call with your attorney and ask them what you should expect in that mediation because it may vary depending on what mediator you chose.

Leigh Sellers:                         [02:56]                       It also may vary depending on what issues the attorneys have decided are going to be mediated. It may simply also have some variance just based on who the attorney is on the other side, or if there is no attorney on the other side. So don’t just assume that there’s some boilerplate preparation to be done. It is going to be unique to each case, so definitely make sure that if the attorney has not already reached out to you and scheduled a phone call in the week prior to the mediation to discuss it, or hasn’t scheduled a meeting to sit down and prepare for the mediation, make sure that you reach out and make sure that that happens so that all of your questions are answered.

Leigh Sellers:                         [03:39]                       So mediation traditionally is held with all of the parties and their attorneys, and the mediator in one room. However, in many counties, that is not the way mediation is conducted. You will find that what happens is that the parties get together in one room for a very brief amount of time for some introductory marks and some introductory comments and then the parties will go into separate rooms with their attorneys and the mediator will bounce from one room to another and giving each person an opportunity to discuss their position on things and then they will really be running offers back and forth between the rooms.

Leigh Sellers:                         [04:20]                       Now that was not initially how I was trained. The mediations were all supposed to happen in one room and you were working with parties represented or unrepresented, very collaboratively in one environment but over time, that philosophy ceded to, I think attorneys’ inability to trust their clients to speak frankly in front of the other attorney and not hurt themselves. Attorneys are control freaks by nature and training and so I think what happened to that process is that the attorneys mucked it up a bit. So you’re not going to see that as much right now and it generally is simply because attorneys are often frightened that someone’s going to hurt their own situation by just not understanding the consequences of what they say.

Leigh Sellers:                         [05:11]                       So, to make sure that clients have an opportunity to talk freely and not have a muzzle put on them by the attorney sitting next to them, and to make sure that the attorneys don’t take over the conversation, I think a lot of mediators just decided, “Wow, we just need to get these people in separate rooms so that I can make sure that I get the full picture from the person who’s going to be most affected by this process.” Their attorney’s going to let them talk because they’re not going to be so scared of what they say because mediation is confidential.

Leigh Sellers:                         [05:44]                       So what you want to really want to spend time when you’re preparing is understanding that you’re going to have an opportunity to speak freely and ask any question that you want to ask and it’s not going to be held against you. So make sure that you’ve really spent some time thinking about what you want to achieve. Sometimes people aren’t, they’re very caught up in what the process is and what’s next and how do we do this and how can the other side be taking this position? And I don’t understand why that’s happening or what is the other attorney doing? But we get so caught up in the process sometimes, you forget what it is that your long-term goal is. So sit down with a legal pad or your computer and make a list of what it is that you want to achieve. What is your end result?

Leigh Sellers:                         [06:31]                       Then what you want to do is you want to think about your alternatives. Go ahead and spend some time thinking about your plan B and your plan C. “Well, if not A, what is B?” So think about your varying levels of what you can accept in every part of your case, whether it be monetary or custody, think about, “Well, I want the house but if I don’t get the house, what’s my next option?” Think about, “Well I would like to have my children seven days straight but if that’s not it, what’s my second option?” But really spend some time problem solving because your toolkits in mediation are going to be about the same. You’re going to concede a point, you’re going to compromise a point, you’re going to negotiate a point or you’re going to stand firm on a point.

Leigh Sellers:                         [07:19]                       It’s important to take some time before you get in the room to think about what your priorities are. What is the most important thing for you to achieve? Then rank everything else below it so that you know where it is that you’re going to spend most of your time, where it is that you’re going to spend most of your work, where it is that you want the mediator and your attorney to spend most of the time. So be sure that you understand what your priorities are and communicate them very directly to your attorney and make sure that your priorities stay the focus while you’re in the mediation. So you want to go to the mediation with your own notes and every time somebody else tries to start making the priority of the conversation something different than yours, you want to gently redirect it.

Leigh Sellers:                         [08:05]                       The other side in the case may not have the same priorities, so often you’re going to be sending over a suggested proposal that has your priority top and center and then when you get the other side’s response, they’ve come back with some of the first things that they want you to concede to and then your priority is like 10th on their list. So sometimes the shifting just happens because the other room has a different priority and they want to talk about their thing first. It’s fine because you need to addressing their priorities as well, but it also … don’t let yours get lost in the shuffle.

Leigh Sellers:                         [08:42]                       You also want to make sure that you try to think about what is your spouse’s, or the partner’s, or the other side’s priority? Because understanding what you think that they’re going to be looking for, or what you know that they’ve already focused on, you need to understand and think about what are your responses to that, what are you willing to concede to them to help them get what they want?

Leigh Sellers:                         [09:02]                       The idea of mediation is to be a win/win, so while you want to be very focused on what you want to resolve and what you want to get out of this mediation, really good preparation involves thinking about what you know the other side wants and what it is that you’re willing to give them because they’re not going to leave without something that they want. That’s not going to happen, so if you think a mediation is going to end with you getting everything that you wanted, then you’re being naïve because it’s not going to happen. So you need to understand what you’re willing to concede on. So always think about what is it that you want and then what is it that you need. So it’s good to have a wishlist and to have a bucket of, “Boy, this is what I’d really love. If I could wave a magic wand, this is the result I want.” But you also have to go ahead and have that second list is, “This is what I absolutely have to have. I need this to move forward,” and really focus on the needs versus the wants.

Leigh Sellers:                         [09:59]                       Make sure that you stay focused. One of the ways that you can best prepare is to spend some time before your mediation preparing emotionally. I have had people walk into a mediation that have not been in the same room with one another, have not seen each other in person and have not spoken to each other in as much as 14 months. They were married to this person, they were in bed with this person, they had children with these people and they had communicated 100% by email or text since their separation. They are sometimes walking into that building for the first time together since separation and that’s emotionally jarring.

Leigh Sellers:                         [10:39]                       So if you haven’t seen this person, I’ve had people walk in and not recognize them physically. They’re not following each other on social media anymore, they’re not sending each other Snapchats, so they haven’t physically seen them and sometimes they are shocked at the just physical change in the person. Weight loss, weight gain, more gray hair, just their physical condition can often have changed and that’s a shock. It’s often unexpectedly emotional to see this person. It’s sometimes easier to be mad at somebody far away and to build up more and more resentments and then they see them in person and some of that dissolves.

Leigh Sellers:                         [11:13]                       Sometimes the opposite is true. They’ve managed to hold all of these negative feelings at bay and then as soon as they walk in the room, they just all bubble up to the surface and I think that you have to have some understanding of what’s going to make sure that that day is productive for you. So if you haven’t seen that person and you think it’s going to be hard for you that day, you may want to engineer an opportunity to see them before your mediation, so that you’re not also dealing with that when you get to the mediation. You may need to tell your attorney, they may not know … you’re sharing emails and texts with them but they may not understand that you haven’t seen this person in two years. They may not understand that you haven’t spoken to this person by phone, they haven’t even heard the sound of your voice. They just won’t always understand the reality of your communications in the separation. So make sure your attorney knows so that they can be prepared.

Leigh Sellers:                         [12:02]                       You also want to think about anything that you know that’s happened in your life that the other side doesn’t know about that you think might impact the mediation. So I’ve had people come in who were pregnant with their new person’s child and of course, the other side doesn’t know that and they haven’t let them know but if they find out during the course of the mediation, it could stop the train right in the middle of the tracks. So you may need to disclose that to your attorney, “Hey, I’m pregnant, this is going to drive a lot of my decisions and the other side doesn’t know and I think they’re going to be very upset about it.” Or, “Hi, my girlfriend’s pregnant and nobody knows yet but this is going to be a big thing for me and I don’t want the other side to know and how are we going to negotiate this without letting them know because this isn’t something I want them to know?”

Leigh Sellers:                         [12:52]                       Be sure you let your attorney know if there are any grenades that you’re going to be bringing with you to the mediation because we might need to have a really good plan in place to make sure that we can all get to a fallout shelter if something happens. We’re often the last to know and that’s never a great place to be, so prepare your attorney for anything that could impact mediation.

Leigh Sellers:                         [13:17]                       As a practical matter, make sure if you have children that you have backup childcare. These mediations can last very long and if you get to a point where you have reached an agreement, your mediator and your attorney are not going to let you leave until it has been reduced to writing and signed by all parties. So if you were thinking that you were going to be able to go pick your children up from school, that may not happen. So if your attorney has failed to mention it, make sure you’ve got backup childcare for your children if they’re in your care on the day of the mediation, that you have a plan in place, because if you get a chance to leave early and you resolve everything early, you can always just use that time to run some errands but make sure that you’re not being distracted during the mediation by needing to get out by a certain period of time.

Leigh Sellers:                         [14:02]                       Make sure that you bring some materials to read. There’s often … the mediator who’s going back and forth between the two rooms will spend a lot of time in your room and it’ll seem like they were in your room 10 minutes but they were there for an hour and a half. Then they go to the other room and it feels like they’re in there for an eternity. Sometimes you and your attorney will have some work to do on a particular issue, like I often try when I’m doing a mediation, I try to give the other side some homework so they can keep the situation moving. So if I know that there’s an issue about, “All right, I’m going to go talk to them about the house, can you guys get me a little bit more information on the alimony or the 401K?” Or, “Can you go ahead and find the plan?”

Leigh Sellers:                         [14:42]                       I like to try to keep it moving if I can foresee that there’s a question that’s going to come up. Just based on your proposal, I can just anticipate the other side’s going to have an issue with x, y, z. I may go ahead and have you start working on x, y, z but every mediator’s different. So you may not have anything to do, you may just be sitting there waiting for the mediator to come back, so it’s good to have something to occupy your time so you’re not just sitting there awkwardly talking to your attorney about the weather.

Leigh Sellers:                         [15:09]                       The other thing to do is make sure that you’re prepared to eat. So if you’ve got any dietary restrictions that are going to prevent you from eating any food that they might provide, make sure you have snacks, make sure you have water. Most mediators try to keep everybody comfortable. Blood sugar dropping and people just getting hungry can actually affect their ability to negotiate, make decisions. So we want to make sure that that doesn’t happen to you.

Leigh Sellers:                         [15:34]                       Lastly, make sure that you have given your attorney all documentation that you think that they need for the issues. But just in case you didn’t bring everything, be sure that you bring your own personal laptop or device that has all of your passwords for any accounts that you have so that if you’re asked to get into your bank account and provide proof of something, and you weren’t expecting to be challenged on it, that you can do it and it’s not a situation where you’re running around saying, “Well I can get that to you later.” So just go ahead and bring your own laptop, bring a phone charger and just be prepared to really get down and answer any issue as it comes up, real time.

Leigh Sellers:                         [16:17]                       If you take medication, please be sure that you bring it with you so that you can stay on schedule. If you are taking medication, please make sure your attorney knows. This is not a time to double up on anxiety medication if it’s going to actually make it where you can’t function properly but we need to know because one of the things you’re going to be asked in a lot of situations is, “Were you under the influence of anything when you made this decision?” I did actually have a client who was being extremely challenged during a mediation go out and unbeknownst to me, take some additional medication that she was already on and came back and was a totally different person 20 minutes later than she had been before she went out. I actually had to suspend the mediation because she was no longer competent and that wasn’t her intention but she was taking medicine when she had already taken it and she was anxiety-ridden. It just shut her down and I thought she was going to fall asleep sitting up in the chair and I couldn’t give her documents to sign.

Leigh Sellers:                         [17:14]                       So that was very unhelpful and had she told me that she felt like she needed to do that, we might have just taken a break or done something else to help let the steam off but instead she went out there and took medication and it had the negative affect because we had to recess, leave everything and come back later. Of course, people often get buyers remorse and so they weren’t exactly in the same place we had left when they came back because the other person had some second thoughts and used the delay in signing the documents to try to renegotiate some points that we had made, especially after they had talked to two or three other people.

Leigh Sellers:                         [17:55]                       The other thing to do is, if you have significant people that you’re not going to be able to make a decision without consulting them, you need to tell your attorney and we need to figure out in advance how to handle the fact that you do not feel that you are going to make a decision without talking to your father first, or your mother first, or your brother first. Or if this is a mediation that’s happening with your first relationship but you’re already remarried, if you feel like your spouse, you need their input, you need to tell your attorney before you go to the mediation so that we can make sure that there is a vehicle in place for you to talk to them and what it is they need to weigh in on and that we do that timely because we don’t need people after we’ve negotiated running out and then getting on their phone and then coming back in after six hours of work and somebody else has made them doubt it. If they’re that important to your decision making process, we may need them to take off work and be sitting there through the whole thing.

Leigh Sellers:                         [18:51]                       Do not ever bring somebody to mediation that you haven’t already vetted with your attorney because they need to let the other side know if you’re bringing somebody because if your new girlfriend or boyfriend shows up at your mediation unexpectedly and it completely sets the other side off, it could ruin any chance we have of making progress. Whereas, if they needed to be there, it would be something that we could in advance prepare the other side for and the attorney for, that they are a trusted person to you and they’re going to bear influence on your decision one way or the other and that we want them to be in the room and hear what the mediator says first hand, rather than hear some third-hand account about it later, because we think that it’s necessary for you to reach an agreement. We can handle all of those things up front, so we just don’t want things to start off on the wrong foot.

Leigh Sellers:                         [19:42]                       So clearly, how you prepare for the mediation is just as important as being at the mediation and how you conduct yourself at the mediation. So make sure that you spend some time doing it and that you don’t just show up at the place that you’ve been asked to come, at the time you’ve been asked to come with your checkbook, having never prepared or met with your attorney prior to it. You’re better off postponing the mediation to allow time for that, than to show up ill-prepared because we want mediation to be super successful for you and we’re going to do everything we can be involved in to prepare beforehand and we just need you to do the same thing. Then hopefully you can avoid protracted litigation and some third party judge telling you what to do with your life. So there you have it. Another neighborhood of Splitsville explored. There’s still so much to learn here so I hope you’ll tune in to the next episode. While Splitsville is not a fun place to be, thankfully it is full of helpful people, valuable resources and sound advice if you know where to look. See you next time.

Announcer:                            [20:54]                       The insights and views presented in Welcome To Splitsville are for general information purposes only and should not be taken as legal advice for any individual case or situation. Nor does tuning into this podcast constitute an attorney-client relationship of any kind. If you’re ready for compassionate and reliable legal guidance on your journey, contact Leigh Sellers and her team at touchstonefamilylaw.com.

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