Wall Street Journal article on mediation

The Wall Street Journal ran an article a few weeks back entitled Five Strategies to Get a Better Deal in Mediation by Veronica Dagher. While the article refers to business as well as divorce mediation, to be honest, it kind of ticked me off—mostly because of the title.

What turned me off about the title? To me, the word better implies that one side is trying to get a better deal than the other side.  While it is natural for someone who comes into mediation to want to do well or to get a good deal, the point of mediation is for both sides to get a good deal.  In other words, while you want to achieve a good deal for yourself, it helps to remember that is also the objective of your spouse. Done correctly, finding the best deal for both sides can be accomplished.

When I thought of it in that perspective, substituting the word best for better, many of the points in Dagher’s article made a lot of sense. For example:

  • Preparing yourself emotionally – Divorce is an emotional journey and many of the topics discussed during a mediation will not be pleasant. Getting yourself to a place where you can handle the process emotionally is great advice. That can mean seeing a therapist, talking to friends and family, going to the gym or anything else that helps you stay calm and  puts you a better frame of mind for the process.
  • Have a firm grasp of your finances – More than any other piece of advice, this will benefit you most in a mediation. This is particularly true if you have not been the bill-payer or money person in the household. You will need to educate yourself on everything ranging from savings and retirement accounts to understanding what your day-to-day income and expenses are.
  • Practice what you want to say – Prepare what you want to say and practice. Being ready may not alleviate all the anxiety you’re feeling, but it will certainly help ease your nervousness if you feel prepared.  While reading your position is less effective than being able to say what you are looking for and why, there is nothing wrong with a written summary or cheat sheet.
  • Choose your mediator carefully – You want to work with somebody that both sides are comfortable with. I make it a point to schedule a brief introduction without charge to ensure that the three of us can work together.

There were a few other points in the article that rubbed me the wrong way.  One in particular was the suggestion that you would get a better result if you could win the empathy of the mediator. While I won’t say that can’t happen, it’s highly unlikely to impact the outcome of your mediation.

First, mediators are trained professionals and it’s our job to be neutral. That neutrality comes from training and a certain mindset. Plus, our job is to work with both parties to come up with a resolution that’s agreeable to both parties. Being empathetic to one spouse more than the other does not accomplish that objective.

In the end, the real work in a mediation is done by the divorcing couple, not the mediator.  A good mediator is focused on the process not the outcome.  Empathy will only get you so far.

Finally, I have some reservations with the suggestion about having a litigation backup plan. I actually agree that both sides should consider a backup plan but within the mediation negotiation. You can create a wish list of what you would like to get out of the settlement, but you must remember that your spouse must agree to that, too. The backup plan is really knowing what compromises  you are willing to make.  Of course, litigation is always an option. But if you want to reach a settlement as quickly and as cost-effectively as possible, litigation seldom accomplishes that objective.

Bottom line.  There is no reason why you should not prepare as much as possible in order to get a good deal in mediation.  Just remember that in order for your spouse to agree to the terms of the mediation, he or she needs to get a good deal as well.

To read the entire Wall Street Journal article, click here.