Mediation Tips

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Mediation Tips

Unread postby defaultuser » Fri Aug 03, 2012 2:53 pm

I'm sure this is posted many times here, but I went through mediation today (for the 4th time in 6 years) and I thought I'd offer my mediation tips. Today I was able to get something signed that I never expected, but I played my cards right. Go in knowing you're going to be accused of being the devil. Don't respond emotionally to anything. Keep in mind that you don't have to make a bad agreement.

Tip #1 - Write down what you want to cover in mediation.
You don't have to show it to anyone, probably your attorney, but write it down. All the little details about minor issues, etc. Start with what is most important and end with the minor stuff. We ran out of time in mediation today, and I wasn't able to get a typo in the last agreement amended. In one part it states that I get the first week of Christmas vacation even years, and in another that I get odd years. It hasn't been a big problem but I would have liked to get it fixed. Ran out of time and there were bigger fish to fry. This is why a prioritized list is essential. In the heat of battle, you may forget something, so you can look down and see that you need to talk about right of first refusal before ending, etc.

Today, I was able to mediate to an agreement. I did not expect to, and I did not come out with the agreement I envisioned going in. This is common, so tip #2

Tip #2 - Keep an open mind and plan to give up something.
Listen to the mediator and let them do their job. It is the mediator's job to dispose of all issues. If that's not possible, it is their job to make a partial settlement. That is what I did today. I told the mediator that I would not accept less than X, and in the end I accepted something that is very likely better than what I went in with. The mediator went outside the box and I believe set up my X for failure.

Also, expect to give up on something you want. Its rare to get everything you ask for, as compromise is the key to getting something signed. If you want 50/50 timeshare, go in asking for 75%, or 50% with three weekends a month or something. Don't give in too soon, and make it seem like you're unhappy about it when you do give in. This is an important psychological tool to make the other side think they got a good deal. If a 2 hour ROFR isn't in the cards, then give in and make it 4.

Tip #3 - Set up your X for failure.
Mom can't stop drinking? Make sure that you have the agreement state that the parents won't drink around the kids. The issues can be anything - education, tardiness, child exchanges, child care, whatever. If you have an area of concern and there is a measurable way to determine a violation, get it in the agreement. It is very nice to include an automatic result for her bad actions. She's more than 15 minutes late to a child exchange? She loses her next 3 days of parenting time. You get the idea. My new agreement states that if my X does something the time share schedule will change permanently to 80% with me without having to go to court.

Tip #4 - STFU
Mediation isn't about being fair, its about getting the best outcome. Often, in the heat of things, stuff gets missed and lots of times its in your favor. Pay attention and keep your mouth shut. Stay on focus and think before you speak. When reading the final agreement, don't say stuff like: "Hey, I agreed to pay 80% of the out of pocket costs, and you've got me paying 20%. You got the terms former wife and former husband mixed up." Just think before you speak.

Speaking of thinking before you speak, and this is pretty important - your wife, NJ, X-wife, baby momma will probably be spouting off a lot of BS. Most of it will not be true. Don't argue. Don't even open your mouth. Today, my nut job X wife was in full form. She was projecting, and in fact, I learned some stuff because I paid attention. I was accused of putting the kids into extra curricular without consulting her. I was accused of ignoring schoolwork. I was accused of controlling behavior. None of it was true and I have evidence to back me up. Did I say: 'Hey, thats BS. I texted you and asked permission before I put the kids in soccer. I shared the schedule and outlined your responsibilities and you agreed. Look here..." Nope. What did I say? Nothing. Why? This isn't trial, its mediation and anything said here doesn't make it to court. When you sit back, listen, and don't get upset, the mediator will catch on quick. If you engage, you're both NJ's. Because I've kinda figured out the X today, I was able to pick up on a lot of things I didn't know because I was just sitting back, listening and taking notes.

Tip #5 - When you do speak, stay positive
Instead of saying, "She's drunk half the time when she's driving the kids around", say something like: "I'm concerned with the children riding in the car when the driver has been drinking. I'd like our agreement to state that each parent will abstain from alcohol at least 8 hours before driving the children."

Don't use negative words and don't accuse your enemy of bad stuff unless its absolutely necessary. Today I said something like: "I would like to take the responsibility for doing X" instead of "NJ doesn't ever come through when we do this."

Tip #6 - Its ok to agree to disagree.
If you're at an impasse, you may find that suggesting to move on is useful. If she insists on you paying 85% of your income in child support, you might want to say: "It looks like we won't agree on this issue. I'm comfortable with taking this item to the judge. Can we move on?" This does two things: 1) It lets the other side know you're not going to give in, and are willing to roll the dice with the judge. 2) It free's up time to talk about other things. If you get at least one thing agreed upon, you've been partially successful. Actually, in mediation today, we didn't get into anything financial. I was willing to give up tons of money to get the other stuff I wanted, and it never came to that. Now I can go to court and the law is in my favor. Probably saved me 6k by not talking about something.

Tip #7 - Read it twice.
I have mediated successfully 3 times, and every time there is some kind of typo or something missed that you discussed and agreed to. Take notes and compare them with the agreement. This will become law to you and you need to make sure its right. Today, I found the word "weekend" when it should have said, "weekday" This was after the X read and signed it. When you are at the end, emotions are high and your adrenaline is running because you've finally got some resolution. It is not a time to skim over. I suggest reading each paragraph twice, slowly. Lots of times you're rushed because someone else is coming in or whatever. Stop. Read slow, make sure its right. If you find a mistake, make sure it isn't in your favor before you draw attention to it.
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Re: Mediation Tips

Unread postby jerico08 » Sat Aug 04, 2012 5:41 am

This is excellent advice.

One thing to add is during any mediation, treat it as a business meeting rather than sitting next to someone you once trusted and loved. Always consider your ex as an adversary who does not have your best interest or back anymore and can no longer be trusted. Keep any emotions out of it.
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Re: Mediation Tips

Unread postby Southern.Putter » Sat Aug 04, 2012 12:44 pm

defaultuser -- This is one of the best posts I've ever read on here. Well said!
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Re: Mediation Tips

Unread postby a dad » Mon Aug 06, 2012 8:03 pm

Your post is comprehensive. Your statements are concise. Your insight is beneficial. And your timing...perfect.

I had 4.5hrs of mediation today & this advice aided me tremendously and assured my approach throughout.

Thank you defaultuser.

This could be in a category of The List under How to Deal with Mediation.
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Re: Mediation Tips

Unread postby Trevor » Mon Aug 06, 2012 9:13 pm

Awesome that you were able to turn a colleague's experience to your direct application. Rest well DU, you done did good bro.
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Re: Mediation Tips

Unread postby a dad » Mon Aug 20, 2012 4:11 pm

I just wanted to add, do not give your STBX anything prior to mediation. Do not share your ideas of what you want nor any proposals you have. If you get hers, use it to your advantage, lowball her and compromise to where you want to end up.

While in mediation, feel it out and adjust your strategy accordingly. You need to know your options (by researching your state's suggested plan and this site), your pros & cons for each item as well as STBX's pros & cons and use them to your advantage.

And again, Tip #4 - STFU
But like default said, take notes, especially for when it's your turn to speak.

I found that if I said "I'll have to think about that", the mediator quickly moved on. Basically, it meant "no" without having to disagree.

...and, bump!
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Re: Mediation Tips

Unread postby defaultuser » Mon Aug 20, 2012 4:45 pm

Good tip.

The only thing to add is that it depends on your position in the litigation. I sent my X a settlement offer some months before mediation, but I was in a no-lose situation. I did offer to drop some of the money she owed me in exchange for other things. As it turned out, I didn't end up dropping any of her debt.

If your wife is a homeless drug abusing prostitute, sending something saying you want full custody might not hurt you in mediation. In one sense, it may condition her for what to expect and eventually expect.

FOF thinks that you should say what you want first in a negotiation, and he has good reasons for his position. I like to have the other side state what they want because I can often get them to change their position for the better without giving anything in compromise. Both strategies probably have a good application in different situations.
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Re: Mediation Tips

Unread postby a dad » Mon Aug 20, 2012 5:53 pm

You're right. We all have different circumstances, different goals, different stbxs and different mediators. I am basing my tips on my experiences and even then, I could have been more clear. I guess I should have said, from my experience, don't give your stbx any new positions you may have right before mediation.

I had discussed many issues with stbx for months prior to mediation, in an effort to find compromise. This usually ended with her not responding or threats of mediation and court because she wasn't getting her way. Just before mediation she sent me a proposed parenting plan in order to legally give it to the mediator which included new positions, new details and new issues. I was able to use this knowledge of her position on these issues to counter accordingly and successfully. That's what I was referring to. I found her info beneficial to me, and if I had given her my goals she could have been able to use them against me, if she had the skill.
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Re: Mediation Tips

Unread postby defaultuser » Wed Jul 16, 2014 1:32 pm

One thing I learned is that some places mediation isn't the same as others. Sometimes a mediator writes a report to the judge - meaning that what is said in mediation does make it to the judge. If that is the case for you, just be aware of it and adjust accordingly.
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