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mediation questions ...

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dmari posted 12/16/2013 21:59 PM

Ok ... I may be one step closer to getting divorced. I (I mean, my attorney) filed a "motion to set" and my "position statement". On the papers, it states "mediation may still be attempted".

There is nothing, I mean seriously, nothing to be mediated. Thankfully, I am in a position in which he owes me money and I owe him nothing. There is no custody issues. No property (other than vehicles) to split.

My interpretation of mediation is I will give you this ~ in exchange for that. Is that right?

I know he will want to mediate if that meant "forgiving" money he owes. But wouldn't that be in exchange for something? I wouldn't mind negotiating but he has nothing to negotiate. So what would be the point?

Thank you for your wisdom!

courageous posted 12/16/2013 22:29 PM

Mediation is more like sitting down and try to come to an agreement on what is wanted by each party to receive. If he agrees with everything you are wanting and vice versa then it's done. It doesn't necessarily require you to give up something.

crisp posted 12/17/2013 05:42 AM

You either present the court with an agreement or you go to trial. The agreement is accomplished usually through mediation or agreement drafts going back and forth. Even an agreement reached in mediation requires some back and forth drafts. Mediation is supposed to foster the negotiation process geared toward reaching an agreement.

Obviously, an agreement reached would save costs and anxiety. Unless you have an opponent who is without reason, attempts to reach an agreement pretrial is a no-brainer.

When mandatory mediation became the vogue decades ago (early in my career) I was very skeptical and suspected the process would just add an additional layer of process and expense. I now am a believer. Many times parties have reached agreement when I least expected it. Just go in prepared with a reasonable understanding of probable outcomes so that you may assess settlement parameters.

crisp posted 12/17/2013 05:46 AM

I feel a need to put my experience in context. I have never attended a family law mediation session. My experience is solely related to commercial disputes. While the same principles apply, family law situations may be more irrational at times.

crisp posted 12/17/2013 05:59 AM

One more aspect I should have mentioned- the local rules probably require your attorney to attend any mediation.

dmari posted 12/17/2013 10:41 AM

Thank you courageous and crisp :)

I think my skull is too thick because I'm still not understanding it. What is there to mediate if there is nothing to mediate about. The money he owes me is all tied to the children's care (tuition, medical bills, loan he took out from children's savings).

I think one of my concerns is that I will be "forced" to release him of some of his debt. We have done a back and forth exchange through "Offer of Settlement" which they (stbx and his attorney) has chosen to not respond. AND that was WITH my offer to release $16,000 in debt in exchange for him paying half of DS14 tuition for his high school years.

I don't want to have to release him from any debt plus his financial obligation toward the children. At the same time, I KNOW it would be cheaper and less stressful to NOT go to trial.

So please someone explain to me how mediation would probably work in my situation.

careerlady posted 12/17/2013 11:09 AM

Have you ever haggled over anything? It's the same thing. You might want to pay $12k for a car selling for $16k. At some point in the back and forth you realize $14k with a free car wash and vanity mirror is the best you will get. Your STBX may have thy realization,especially with attorney counsel, as you each explain your reasoning. You may also be willing to shave off a few thousand if it means saving on attorney fees and headache later. You are right in that you may get nowhere with negotiations. But you may also be pleasantly surprised

If nothing else, you will want to do it to show the judge you tried to come to a peaceful solution. Refusing to mediate would reflect poorly, I believe.

crisp posted 12/17/2013 11:40 AM

Prepare a draft divorce decree and send it to him/his attorney. If you get a response you will know what his wish list is. You might be close enough where you can settle on the terms without mediation. Conversely, you might find that he is so unrealistic the it makes no sense to go to mediation. Mediation is a tool to narrow and possibly eliminate differences so that a settlement might be reached.

dmari posted 12/17/2013 13:10 PM

Thank you careerlady and crisp!

I think I am understanding I most certainly would be willing to shave a few thousand if it meant we didn't go to trial. Like say 50% of the equivalent in attorney fees if we went to trial. And yes, I would want the judge to know I tried. If that means I lose a few thousand for this to be done, then yes, I would do it. I guess I just have to figure out how much am I willing to release from him KNOWING I won't get anything in return. I think when it comes down to it, that's my biggest issue. That's something I will deal with.

I know what his wish list is. Pay me $5,000 period. THAT'S not going to happen.

crisp posted 12/17/2013 13:22 PM

You "get it." Good luck.

gonnabe2016 posted 12/17/2013 13:37 PM

Mediation agreements are great because you are allowed to think outside the box. A judge is confined to *the law*.

He wants to be released from any of the debt and you are able to take it on w/o any (or much) pain to yourself? Fine.
You'll release:
$3,000 in exchange for him mowing/snowplowing for you for a year.
$3,000 in exchange for him giving you a weekly mani/pedi for a year.
$1,000 for him to come and do a headstand in your front yard every Saturday at 3pm for a year.
[those are purposefully nutty suggestions (well, not the outside care one) used only to prove my point...]

A judge won't issue any of that in a decision he makes, but it'll most likely be signed off by him if it's presented to him and ok with both of you, kwim?

Your *exchange* doesn't HAVE to be tit-for-tat.

risingfromashes posted 12/17/2013 14:12 PM

In addition to the good advice already offered, I would add that a mediator cannot force you to accept any agreement. The process is meant to be "self-directed" by the parties. A mediator's role is to facilitate the discussion between you and your stbx.

You are within your rights to reject any proposal that is made by your stbx. You can walk out of a meeting any time you want. It is not guided by the same rules as a judge/courtroom.

A good mediator will help the 2 parties prioritize what is important to each of you. Gonnabe is right in describing how creative the agreement can be!

This is for you to decide.

I went through a very messy divorce with a trial in 2012. I am in grad school working on my MA in conflict resolution and mediation. A bit of irony!

dmari posted 12/17/2013 15:33 PM

you guys are BriLLiAnT!! (throws sparkles in the air) Thank you so much! I feel I can face this now.

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