Reviewing the Mediation Process: Negotiation

In our last post, we reviewed the beginning of the mediation process, including ground rules and opening statements. In this post we will talk about the heart of the process: Negotiating.

Getting Your Information Together

You will not be ready to negotiate until you have collected and familiarized yourself with all the financial information and documents you would need if your case went to court. A good way to make sure you are prepared is to exchange New Jersey Family Law Case Information Statements (CIS). This is not a required step in divorce mediation, but it is usually a good idea.  The CIS is a court form that requires each party to list all the information that might be important in their case by category, as follows:

  • A: Information about the Parties
  • B: Miscellaneous Information
  • C: Income
  • D: Expenses
  • E: Assets & Liabilities
  • F: Special Problems
  • G: Required Attachments

You do not necessarily have to prepare your forms perfectly the way you would for court. Even a handwritten draft can be enormously helpful. If you have a simple case and the official form seems excessive, you can refer to our  checklist of financial and personal paperwork for an overview of the information and documents you will need. Exchanging the CIS itself, however, has some unique benefits. The form is designed to make it easy to organize your materials, and to ensure that you have not inadvertently omitted important details.

It is also a good idea to meet with your consulting attorney  after you complete a rough draft of the CIS and before you begin your first mediation session. The attorney can check to see if you missed anything critical and can also help you prepare a list of questions for your spouse. For more information on the benefits of using the CIS in mediation, see: Divorce Mediation and the New Jersey Case Information Statement

Cultivating the Right Mind Set

Preparing for the emotional stress of negotiating in divorce mediation can be just as challenging as preparing the paperwork. You probably have a lot at stake in terms of what your future will look like. You may also have been through a lot of emotional trauma leading up to the divorce. Even so, resist any urge you may feel to simply throw up your hands and run. Try to focus instead on what you want your new life to look like. Where do you want to be in five years? What do you need to get out of mediation to be sure that you can make that happen?

Successful mediation depends on cooperation and collaboration. If your starting positions look completely different, it is virtually a given that both of will have to make some concessions. Maintaining objectivity is hard when the prospect of loss looms large. Be clear about your priorities in terms of what you might be willing to bend on and where you will draw your absolute bottom line. Then remember to look at things from your spouse’s perspective as well as from your own. Listening is key. There could be things that are not particularly important to you but mean a lot to your spouse. This can create openings for compromise.

Choosing Interest Based Positions

When defining priorities, focus on broad interests instead of black and white demands. For example, stating that you need to keep the house, no matter what, is a black and white demand. Stating that you need a place to live that is in a certain location, is of adequate size, and is in good repair is based on your legitimate interest in finding appropriate housing. Similarly, insisting on primary custody is a black and white demand. Explaining that you have been the primary caretake of the children for years and that you think it would work better for everyone if your home was their primary home base expresses an interest in properly caring for your children.

You may need to spend some time thinking about your true interests before you are really clear about them. They will not always be obvious, especially if you are used to thinking in imperatives. It can be helpful to ask a series of pointed questions. For example:

  • Why do you want that?
  • Do you really need that, or is it just a want?
  • What will happen if you do not get that, and how will things be different if you do?

Questions like this can uncover different ways of achieving similar results.

Brainstorming to Find Win-Win Solutions

There are almost always multiple acceptable solutions to issues in divorce. The beauty of mediation is that you are free to explore alternate possibilities that can maximize positive results for everyone. This is often referred to as seeking win-win solutions.  The idea that divorce is a zero-sum game with one winner and one loser is destructive to the mediation process. Do not just focus on trying to get at least half of the pie. Focus on making the pie bigger, so that you can both get more than half.

After both parties have identified their issues, most mediators will open up a brainstorming process that encourages both sides to come up with as many alternatives as possible for a fair resolution of each issue. The idea is to consider creative options and avoid automatic dismissal of any suggestions. Even if a particular idea would not work exactly as proposed, there might be something about that idea that can lead to a solution that would work.

Making Use of Caucuses

A mediation caucus is a separate meeting between a party and the mediator. Some mediators use caucuses frequently. Others use them rarely. If you feel at any time that there is something you need to discuss one on one with the mediator, you should feel free to ask for a caucus. Be aware that to preserve the neutrality of the process, the mediator will offer your spouse equal time. For more information on using caucuses in mediation see: What is a Mediation Caucus?

Summarizing Sessions

The mediator should save some time at the end of each session to note any agreements reached and outline tasks that need to be accomplished prior to the next session. When you are summarizing agreements, be very careful to note whether an agreement is firm or tentative. Often issues in mediation are intertwined. It can be a mistake to make a firm agreement regarding one issue before moving on to another. You may find that this forecloses certain possibilities and locks you in in ways that turn out not to be beneficial. Writing out tentative agreements, on the other hand, can be very helpful in keeping the process moving forward.

Do you have questions about negotiating in mediation or about any part of the mediation process? Contact a family law mediator at Weinberger Mediation Center for a free consultation.