Facing Mediation? Five Key Strategies You Need to Know to Get the Results You Want

JoAnne Donner, MS, CDFA, CDC, CDPC
Mediator/Mediation Coach/Divorce Coach
Donner Mediation and Coaching, LLC

As a mediation coach, my mantra is “Mediation can be one of the most important days of your life.  The decisions made that day can affect you and your family for the rest of your lives.”

I like to remind people of the importance and far-reaching effects of mediation because time after time disputing parties tell me that they went into mediation not knowing what to expect, they got overwhelmed during the session and had trouble making sound decisions, or they just got worn down and did whatever it took to get it over with.

A mediation session characterized by anxiety, confusion and disappointment can be avoided with the proper knowledge and proper preparation.   Indeed, one secret to achieving success at the mediation table is to be prepared.  Don’t fall into the all-too-familiar  trap of walking into a mediation room woefully unaware of the ins and outs of the mediation process and the basic communication strategies you should employ during a conflict-related encounter.

Here are five points to keep in mind to help you deal with the pressures, pitfalls and possibilities of mediation:

(1)  Spend some quiet, high-quality time thinking about what you want and what you need.
Write your thoughts down on paper and read it aloud.  This process helps you organize   your thoughts, identify your priorities and set realistic expectations.  Take a colored highlighter and identify your key points.  Take this paper with you to mediation.  If you are represented by legal counsel, give your attorney a copy.  Many people have told me sharing this written presentation with their lawyer has helped clarify issues and has improved the attorney/client relationship.

(2)  Analyze strengths and weakness on both sides of the table.  In other words, identify the  strengths and weaknesses of the person on the other side of the table, but don’t forget to think about your own.  What are your soft spots that might make you vulnerable during the negotiations?

(3)  Keep in mind that your reactions do not need to be your responses.  It is very easy for emotions to get triggered during a mediation session.   Monitoring and controlling your emotions can be difficult, challenging task, but doing so can help you reach your goal – arriving at a  successful outcome that gives you what you want and what you need.

(4)  Remember that it’s only a first offer.  Many times a party to mediation will react strongly to a first offer.  Reactions might include comments like “That’s outrageous.  We’re never going to agree on anything,” or “That’s an insult.  I’m out of here.”  A first offer is a starting point and should elicit a thoughtful, strategic response rather than an emotional outburst that derails the potential of a mediation session.

(5)  Don’t say “Yes” when you should say “No.”  Many people in mediation feel pressured to accept an agreement that really does not serve their best interests.  Or they give in because they are tired and overwhelmed.  If you are not confident that the offer being presented serves you well, don’t agree to it.  Ask for a break or ask for the mediation to be continued another day.  Give yourself time to think over the consequences of your decision.

The increasing popularity of mediation to resolve disputes is evident in settling divorce cases, civil matters and workplace conflicts.  One reason it is being used more and more frequently in a variety of settings is that it works; it is a cost-effective, time-efficient and less stressful way to manage and resolve conflict.  If you find yourself facing mediation, make it work for you:  take the time to get the preparation you need to succeed and reach a favorable settlement.   Your future can depend on it.

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When Does Mediation Really Start?

JoAnne Donner, MS, CDFA, CDC, CDPC
Mediator/Mediation Coach/Divorce Coach
Donner Mediation and Coaching, LLC

People usually believe that mediation begins when all concerned parties meet in the mediation room and take their places at the mediation table. The truth is that mediation begins when disputing parties agree to participate in a private mediation or when they are notified by the Court to appear in a mandated mediation session.

This pre-mediation phase is frequently overlooked and underestimated for the potential power it has over the outcome of a mediation session.

Would you perform in a stage play without holding a dress rehearsal? The answer is obviously, “No.” Yet, people go into mediation everyday with very little or no preparation for what could be one of the most important days of their lives. This is even more significant when you consider that decisions made during mediation can have critical, life-changing effects for not only the disputants, but for their families as well.

Why is the lack of thorough preparation for mediation so prevalent?

One reason is that while we all have seen frequent television and film portrayals of litigation and courtroom trials, mediation is a relatively unfamiliar form of dispute resolution to most people. The need for prepping witnesses and clients for trial and depositions is widely expected and accepted, while detailed pre-mediation preparation and coaching receives little attention and has much less importance attached to it. The result is that people attend mediation sessions unprepared to deal with the dynamics of mediation and the decisions that will dramatically affect their future and their well-being.

Another reason is that professionals who assist disputing parties with mediation are typically very familiar with the mediation process. Understandably, it’s easy for them to overlook the fact that mediating parties, unfamiliar with the process, can become overwhelmed by the many challenges inherent in a mediation session. This is especially true when emotions kick in and tensions run high. Thinking clearly in a charged atmosphere is difficult. Successfully handling the potential for emotional fall-out is a key area that professional mediation coaching is designed to address.

Other landmines that await disputants include the lack of pertinent paperwork, unorganized paperwork, not understanding the significance of important documents, losing focus during the session, and not being prepared to “tell your side of the story” in a clear, concise and persuasive manner. These are all issues that can be addressed in pre-mediation preparation.

Experience shows that when asked about their mediation experience, people frequently respond that they wish they had been better prepared. And, they report, if they had received more in-depth coaching, they feel they would have realized better results at the mediation table. In fact, a common post-mediation response is, “I just wanted to get it over with. I felt pressured and I felt overwhelmed.”

If you are a disputing party heading into mediation, “just wanting to get it over with,” is selling yourself short. Mediation is your chance to be heard and to take an active part in creating a resolution that works for you and meets your needs. Increase your chances for mediation success by ensuring that you receive the detailed, in-depth preparation you deserve. Professional mediation coaching can prepare you to help steer your mediation to the win-win proposition it can be.

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Mediation’s Most Common Mistake

JoAnne Donner, MS, CDFA, CDC, CDPC
Mediator/Mediation Coach/Divorce Coach
Donner Mediation and Coaching, LLC

One of the most common comments I hear when talking to people about their experience in mediation is, “I just wanted to get it over with.” I hear that with both sadness and concern.

When someone participates in a mediation session, that day is one of the most important days of their life. The decisions made that day affect their and their family’s financial well-being, emotional health, and overall lifestyle. The day of your mediation session is not the time to be vulnerable to the pressures of a fast-moving and potentially overwhelming process. It is the time to be prepared, focused and informed.

If you are going into mediation represented by counsel, make sure your attorney takes the time to prepare you in detail for the mediation process. If you are going into mediation pro se, or without counsel, make sure you enlist the services of a mediation coach who will meet with you several days before your mediation session to familiarize you with the traps, tactics and techniques of mediation. A professional mediation coach will listen to you talk about “your side of the story” from a neutral, impartial perspective and help you prepare, practice and polish the presentation of your story. What you say in your mediation session should serve you well and strategically move you along to your targeted outcome.

Maintaining focus throughout the mediation session is a key to reaching a desirable resolution and something your coach can help you with. There are techniques you can use to re-focus your attention if you find yourself tiring and heading for a sinking spell. There are also strategies you can use if the session, itself, loses focus and begins heading down side paths that are counterproductive. One of these tactics is to consider asking for a break. A break at the right time can revitalize you. It can also break the momentum of a discussion that is overwhelming you or not heading your way.

Being prepared for mediation and being knowledgeable about the dynamics of the process can make the difference between a mediation outcome you are pleased with or a mediation outcome that sadly misses the mark in meeting your financial and emotional needs. Get the preparation you deserve. Your future could depend on it.

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Video Interview

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Spousal Support: A Case Study

By Barbara E. Keon, Esq.

Alimony is alive and well, but the advents of the working woman and women’s liberation have frequently eroded its award in court. This has made representation of the middle-aged homemaker displaced from a long-term marriage a problematic area for the divorce practitioner. The husband typically wants to move forward in life by dividing assets and paying alimony for a few years until his wife can be retrained and get a job, instead of subsidizing her needs for life. Aggressive and innovative legal representation, however, can win a substantial share of assets as well as long-term alimony for the female client, as the following case shows.

A very gracious, intelligent and charming homemaker came to my office this past year. She is what many would refer to as a “deserving woman.” She subsidized the family income in the early years of their 23-year marriage, but stopped working after the birth of the first of their two children and assumed full responsibility for all household duties and childrearing.

Her husband, a bright and driven workaholic, tenaciously pursued his career. At age 48 and at the pinnacle of his career, having reached the level of partner with one of the top six accounting firms, he had a handsome annual income of over $300,000.00 and wanted to start life over. During their marriage, they accumulated a marital home, a summer home, retirement benefits, and life insurance and investment accounts. However, the liquidation of all these assets and their re-investment to generate income would not provide sufficient support for the wife.

The husband wanted to pay his estranged wife a few years of minimal alimony to meet a bare-bones budget until she could retrain in nursing and get a job. He wanted to sell the marital home and other tangible assets then divide equally, after first deducting marital debts, such as the second mortgage on the house, lines of credit and current tax liabilities. He wanted everyone to ignore his non-vested retirement benefits and his earning capacity or regard them as having no real value or being too speculative to value.

The law permits awards of alimony based on ability to pay and need. Certainly, the husband in this case had an ability to pay alimony to sustain the wife’s $5,000.00 monthly budget in the marital home. Having been out of the workforce for almost 20 years, she certainly had a need for spousal support. The issue of how much support and for how long was hotly disputed and ultimately resulted in a contested temporary hearing and contested trial.

As in any trial, mental ability and legal skill must be matched with common sense, and wants must be realistically evaluated. Utilizing his numerical dexterity, the husband pared down, or perhaps the better term would be “hacked down”, his $250,000.00 gross monthly income to only a few thousand dollars of spendable monthly income after payment of taxes, retirement, partnership loan, health and life insurance (all benefits to him), his living expenses and the living expenses of his college-aged son. His efforts were intended to show that he could not possibly pay more than he had proposed and his wife’s demands were unreasonable and excessive.

Our strategy was to focus on his earning power as a marital asset in addition to an income stream for periodic alimony purposes. After all, he accumulated this earning capability during the marriage with the support and assistance of his wife. She took care of the children and the household responsibilities so that he could work 70-hour weeks. She attended functions in support of his career and entertained his colleagues and clients. Using an excess earnings approach, we assigned this asset a dollar value. He was then shown to have excess dollars each month after he paid his budget, his wife’s budget, the children’s budget and taxes. These excess earnings were then projected out over his future work life expectancy and discounted to present value. In short, his professional experience allowed him thousands of excess dollars each month, and he developed this expertise while married; therefore, it should be considered a marital asset, the value of which should be offset by awarding the wife more than 50 percent of the existing tangible assets.

In this particular case, there was another intangible marital asset – the non-vested retirement benefits. We assigned a value to this defined benefit plan using a formula based on partnership shares owned, projected out to retirement age and reduced to present value. The husband argues that this was a purely speculative value, since he would never benefit from this plan if he left the firm before retirement age and the value of the plan could not be accurately determined until retirement age. True enough. The court ordered, however, that the wife receive the marital home, subject to the first mortgage, all of his 401K, most of the cash assets of the marriage, and alimony until she turned age 62, when retirement income would be available. Her husband was ordered to pay most of her legal fees and all other marital debt from his income.

Obviously, results like this depend upon good judges, good facts, and effective courtroom presentation. Typically, courts award alimony for an amount less than a dependent spouse needs to maintain the marital lifestyle and usually only for a term of years, not for life. But, as this case illustrates, it is important not to discount the impact of future earning power on the issue of alimony and asset division. Thus, alimony is still alive and well and sometimes the court should be educated that equal division is not equitable division.

Family attorney Barbara E. Keon can be reached at 770-350-8582; lawyers@keonfamilylaw.com; or www.north-atlantadivorcelawyer.com.

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