Using Mediation Skills to Avoid Divorce Court

Imagine your car is hit in the mall parking lot by a busy shopper, who wasn’t paying attention when she filled the back seat of her car with large packages blocking the visibility out of the rearview window, and backed out of the parking space directly into your side door.  You both get out of your respective cars to assess the damage, and agree that there was only minor damage to both cars.  She says to you, “I’m so sorry.  I wasn’t paying attention.  This is my fault.”  You reply, “I’m calling my lawyer.”  She says, “Instead of filing a lawsuit, which will cost you money and take several months or maybe even years to litigate, would you accept $3,000.00 from me today?”  She stated her case.  She admitted liability.  And anticipating the dispute, she offered a solution.  Do you take the offer?

Now, imagine yourself applying this same strategy in your divorce case.

You’ve been thinking about asking for a divorce, but have feared how your spouse will react.  You know that you haven’t paid attention to your relationship, and have emotionally and/or physically strayed from the marriage.  You have both assessed the damage to the relationship, and perhaps have even tried counseling to repair it.  Unfortunately, you feel that full extent of the damage is simply too great to repair.  You are ready to say, “I’m so sorry.  I wasn’t paying attention.  This is my fault.”  Your spouse will likely react and declare, “I’m calling my lawyer.”

But, what if, like the driver who backed into the car in the shopping mall parking lot, you are prepared with a solution?  How do you think your spouse will react if you instead present your case like this:  “I’m so sorry.  I wasn’t paying attention.  This is my fault.  I was thinking that instead of ‘lawyering-up,’ we could work this out together.  I’ve drafted up a few ideas about how we could co-parent our kids, and worked out a few different calendars that could work for both of our schedules.  I recognize that it will be impossible for either one of us to financially support our marital home, and thought that we could sell it, split the proceeds, and each look for smaller places to live.  Though we haven’t been married very long, spousal support (alimony) will probably be needed, so here’s what I was thinking.  And child support can be calculated using the guidelines provided by the court.  I know this is a lot to consider, but what do you think?”  You stated your case.  You admitted liability.  And anticipating the dispute, you offered a solution.  Does your spouse take the offer?

If the offer is accepted, the next steps could be as simple as meeting with an attorney or certified family law mediator, who would work with you to prepare the necessary documents such as a Marital Settlement Agreement, Petition for Dissolution of Marriage, etc. etc.  to effectuate your divorce.

Whether it’s a slip and fall, automobile or medical malpractice case, one constant element of almost every lawsuit is the “prayer for relief” clause … the request for damages.  Whether required by the court system or simply good attorney practice, many lawsuits are avoided when the parties participate in pre-litigation settlement negotiations, where the parties communicate their prayer for relief in an effort to avoid the high costs associated with protracted lawsuits.  The strategy is to present and discuss multiple solutions at the earliest possible time, to avoid conflict.  Here are a few steps to follow:

1.     Prepare and draft multiple solutions to each dispute before raising the issue.  For example, instead of declaring that you want 50/50 timesharing/custody of the children, construct different calendars presenting a variety of possible schedules for you and your spouse.

2.     Admit your own fault in the demise of the marriage.  Take responsibility for the failure of your relationship, and don’t connect it to anything your spouse did or didn’t do.  Putting your spouse on the defensive will not help you achieve your goal.

3.     Prepare and present a reasonable offer of settlement.  When thinking about your offer, consider whether you would accept the same offer if presented to you.  Try to avoid game-playing, that is, “haggling” with the numbers or possessions.  Let your spouse know that you are serious by making a serious offer.

While an attorney or certified family law mediator can certainly help you and your spouse prepare a Marital Settlement Agreement, you may also want to consider first consulting with a divorce coach, who can help you in the “prelitigation” phase.  A divorce coach will educate you about the process of divorce, and can help you assess your specific situation, offering suggestions or guidance in how to best approach the initial discussion with your spouse.

Diane Danois, Esq.