“I know going to court is expensive,” Cassie told her lawyer, “but if we go to mediation, Brent is never going to agree to anything that I want. Every time I try to talk to him about alimony, he just gets mad. He keeps accusing me of wanting to mooch off of him for the rest of my life. I don’t like the idea of having to depend on him any more than he does, but he seems to think I can just walk back into a great job like the one I had when I was 30. I don’t think that’s too likely after 15 years at home with the kids!”
Cassie’s attorney listened sympathetically. “Well,” she said, “some people are just impossible to talk to. Lots of people seem close-minded initially though, and then actually respond well to the mediation setting. This is especially true if you can set a positive tone right at the beginning. Before we conclude that Brent is one of the impossible ones, let’s work on a collaborative opening statement.”
What is an Opening Statement?
Some divorce mediators may tell you that they don’t really use opening statements, or that you are free to make one if you like but it is not required. Some mediators refer to their own statement explaining ground rules and other procedures at the beginning of the first session as the opening statement and then call the statements by the parties something else, such as an introduction of the issues. While opening statements are not technically required in divorce mediation, don’t pass up the chance to make one. Your attorney, or a divorce coach if you are using one, can help you put it together.
In a jury trial, attorneys use opening statements to tell the story of their case. The purpose is not to argue but to outline facts. Each attorney takes turns explaining what the evidence will show and how that evidence will support their story. In a New Jersey divorce trial, there is no jury, only a judge. Lawyers often still use opening statements in such so-called “bench” trials, but they may also waive statements and proceed directly to presenting witnesses and other evidence. Sometimes a judge asks for a trial brief that includes both facts and legal arguments.
Mediation is different from either a jury trial or a bench trial, and opening statements in mediation serve a slightly different purpose. If you and your spouse each list every issue you have in the divorce, the mediator will have a comprehensive outline of everything that needs to be addressed during the mediation sessions. Unlike a judge or jury, however, a mediator is not going to be deciding outcomes in your case. Who are you trying to persuade with your statement, then? The answer is, of course, your soon-to-be ex-spouse.
Tell A Compelling Story
Your opening statement is an opportunity to tell the story of your divorce without interruption and to frame the issues from your own perspective, through the lens of how things personally affect you, and in a light favorable to your own goals. It is also a chance to show that you are organized, determined to come away with a fair result, and not least of all, a potentially formidable adversary if mediation doesn’t work out and you end up in court.
Remember that the statement is a summary, not a detailed recounting of your entire life. Unless your divorce is extraordinarily complicated, you won’t need more than about 10 minutes. Your spouse already knows most of the relevant facts about your marriage and divorce, of course, but many people facing divorce are so focused on their own sense of loss that they lack the bandwidth to really listen to their spouse. Many couples spend months or even years in conflict before reaching a point where they can finally begin to resolve such conflict. Sometimes there is so much vitriol that they see each other less as human beings than as caricatures. Your first mediation session can be a chance to re-humanize yourselves in each other’s eyes. Then you can put your disagreements out at arm’s length, where both of you will be able to look at them more objectively.
Don’t Act like a Shark Attorney
Some people get so nervous at the idea that they are going to be arguing with their spouse without an attorney present that they decide to take on the role of shark attorney themselves. While you do want to project strength, it is usually a mistake to come across as too aggressive. Your spouse will understand that you have a strong case if you are able to tell a compelling story, one that sounds like it might well convince a judge to be on your side. Your main goal is to win your spouse over to seeing things from your perspective.
Let your spouse know that you are not looking for a “winner takes all” approach, but that you truly want a result that is fair for both of you. Attacking someone usually prompts that person to attack back. You do not want to provoke this kind of defensive reaction. A conciliatory tone can go a long way toward lowering hostility between both of you. Your spouse is much more likely to listen to what you are saying if you can create a non-confrontational environment. They may simply not have thought about some of the things you have to say. This is the time to let them realize that. Ideally, you want to start negotiating in an atmosphere of mutual trust. If that feels like a bit of a stretch given your history, at least reach for a weapons-down non-threatening approach.
Acknowledge Your Spouse’s Experience
If your spouse is basically a decent person and the marriage is just not working out anymore, consider acknowledging this. You can even offer a note of appreciation for something the spouse has done. Then you can start to toot your own horn with facts that support how much you put into the marriage. Focus on facts that are relevant to your position in the divorce. For example, maybe you sacrificed a promising career to care full-time for the kids. This is relevant if you are asking for things like primary custody, alimony, or the right to the family home. Maybe, on the other hand, you wish you could have spent more time with the kids during the marriage, and you don’t want to be penalized out of parenting time now just because you were working hard to give them a comfortable life.
Whichever side of this kind of argument you are on, its fine to express appreciation for your spouse’s contributions. Just be sure that you stress facts that support your own positions. If you have kids, always focus on what is best for them. Not only will that be persuasive to your spouse, but it’s also just the right thing to do.
Cassie took her attorney’s advice and carefully put together an opening statement. She presented her own side of things while also acknowledging some of Brent’s positive qualities and contributions to the marriage. The effect surprised her. He dropped his combative posture almost immediately. That isn’t to say that there were no bumps at all during the course of the mediation. They were able to talk constructively though, and eventually they reached an agreement on all their issues.
If you have questions about any part of the divorce mediation process, contact us today for a free consultation