What Can I Expect During Mediation?
I have been involved in hundreds if not thousands of mediations. I have seen the process play out many times. In my experience, there are several common observable patterns that anyone approaching mediation should expect and know about.
- For one thing, people aren’t robots. You should not go into mediation expecting everything you know about human nature to suddenly change. People are emotional beings who often have to go through stages of emotional processing before they feel prepared to reach agreements. In mediation, part of that processing often involves parties spilling their guts to the mediator. Parties in mediation often feel the need to let the mediator know the history of what’s been going on in the divorce, separation, or general disagreement from their perspective. The reason people usually need to go through this process is because people are often unwilling to settle until they feel heard, listened to, and understood. They won’t feel like the mediator can represent their interests against the interests of the other party without a good understanding of their perspective. Thus, the first thing people usually do in mediation is to spend at least an hour describing the situation with the mediator. This may include the history of the relationship between the parties, as well as the history of the current conflict and the problems therein.
- After that initial background intake session with the mediator, the offers will begin. During the course of mediation, each party will make offers and counteroffers. It is very important to remember that first offers should not be taken at face value, especially if there is acrimony between the parties. Rather, first offers are often unrealistic, and may appear somewhat offensive or insulting to the other party. They are often met with lots of subsequent raging by the person receiving the offer. If this happens to you, don’t be discouraged. First offers are likely to seem ridiculous. This is not unusual and can be considered a “normal” part of the beginning of the negotiation process. Consider the first offer like the first few initial jabs or thrusts thrown by a boxer or fencer at the beginning of a match. At that early stage of mediation, each side is still often testing the other side’s defenses.
- The fact remains that first offers can still be offensive to receive, and it can be very easy to overreact. However, I strongly advise my clients against reacting negatively or strongly to any offer, even if it is insulting. It is best to listen to any offer extended by the mediator with as little reaction as possible. This doesn’t mean keeping your opposition to yourself. It simply means moderating it. When the mediator presents the first offer, listen to the entire offer, and write it down point by point. As you do, write down your oppositions point by point as well.
- Sometimes a mediator will attempt to get a party to commit to one point of an offer before explaining the rest of the offer. I generally discourage this. Most of the time, if the mediator tries to get you to commit to any single point before it is appropriate, I will ask them to reserve their request for reaction or commitment to any points until the entire offer has been presented. Once we get the mediator to present the entire offer, your job will be to listen to the offer, write it down point by point, write your oppositions down point by point, and not react or commit to any point. After the entire offer has been delivered, we can start addressing each point, one at a time, from the top of the offer. I will be able to give you my advice and input, and then together we can formulate a response to the offer or to each point of the offer. This process prevents knee jerk, ill-advised, commitment, or reactions that could hamper negotiations or result in a less advantageous agreement.
- During the mediation process, each side’s weaker claims will naturally tend to drop off. In a standard mediation, each party will have areas where their claims are stronger and areas where their claims are weaker. Each party will spot and attack the weaker claims of their adversary, sometimes in an attempt to prove that the law generally is not on their side. In this way, each side tends to have their weaker arguments fade into the background, leaving only their stronger points.
- Many people tend to approach the beginning of mediation energetically (if charged with nerves). They tend to be “bright-eyed and bushy-tailed”, so to speak, and ready to do battle over the course of the day. However, in most mediations each side will meet continued resistance, which will cause each party to begin to wear down. Both parties might become emotional, and in fact may cycle through emotional states—from relief to discouragement, anger, frustration, or even excitement—repeatedly.
- As the day and the mediation process wear on, there will likely be times when you want to throw up your hands and walk out of mediation altogether. There will likely be times when the party you are opposing feels the same way. Parties usually reach this point sometime in the early to mid-afternoon. When the time comes, I frequently see one party or the other say, “Fine! Let them have it.” That party then makes a significant concession, and/or agrees to something major that the other side wants. That usually breaks the ice, so to speak, and starts to loosen the negotiation to the point where we’re really “talking turkey.” That is, we’re really getting down to a point where real compromise can occur, and to the negotiation of a realistic agreement.
- This stage of negotiation can be arrived at in several alternative ways as well. Sometimes, instead of one party making a significant concession, one or both parties will get creative and think of a solution that neither has thought of before. This scenario is often a win-win for both parties and can also be the catalyst for the negotiation to really start gaining traction.
- In terms of negotiation, I have noticed that opposing parties in mediation will often adopt one of two negotiating styles. The first is cutting to the chase, and the second is what I like to call “used car salesman tactics”, or “the long slow dance to the middle.” The “used car salesman” method can be best described as follows. I offer 1 and they offer 10. Then I counter with 2 and they counter with 9. This kicks off the “long slow dance” until we both get down to a midpoint of 5 or 6. In my experience, this makes for a slower, less pleasant mediation, but can still be handled. Generally, if the other party seems to be sticking with either the “used salesman” approach, I recommend doing the same, even if you are impatient. Otherwise, if you start at 1, then he will counter at 10, and you may go to 3, but he will only go to 9. You will end up giving away what much more than he does just because you are impatient and don’t want to engage in “the long slow dance.” Hopefully your opponent will be a “cut to the chase” type instead, which you can also match.
- Usually, when parties get close to an agreement, there are a few last hurdles to jump in the form of one to three sticking points or impasses. These sticking points can be either big or on little issues. If the impasse is regarding significant issues, oftentimes at this stage in the negotiation, neither party is going to convince the other party that they are right. Therefore, if the parties are going to be able to resolve the impasse, they often need to either (a) trade issues (i.e., agreeing to concede on one issue in exchange for the other side conceding on the other issue); or (b) they can meet more toward the middle in the issue that became a sticking point. There are various creative ways of doing this, depending on the issue.
- Sometimes, the sticking point is a trivial issue. For example, let’s say the issue is who gets the couch. Usually, these trivial issues become sticking points because each side feels pushed to the limit. They feel as if they have been the only one making significant concessions and that the other party has been getting everything that they want. It is very common for both sides to feel wronged in this way. From that vantage point of injured pride, each party wants the final victory, even if it’s something as stupid as who gets the couch. It is surprising how often this scenario can play out at the end of an emotional day. Finding yourself in this situation is like finding yourself in a game of “chicken.” Usually, games of chicken are only won by the crazier one who is unwilling to swerve, even if it means crashing headlong into the other party and hurting the both of you. Therefore, if you find yourself in this situation, I strongly advise not being “the crazy person” who won’t swerve and is willing to tank an entire negotiation over a matter of trivial pride. Rather, be the sane person. Let the other party have the stupid couch and get the deal done so you can move on with your life.
- If mediation is successful, it will result in an agreement. After an agreement is reached, it usually takes about an hour for the attorneys or the mediators to tighten up the language. The devil is in the details, and the language of the agreement matters.
- The end of mediation can sometimes feel anticlimactic to a certain extent. Assuming each side has roughly equal bargaining power, neither party is going to walk out of mediation having gotten everything they asked for. Each side is going to feel somewhat disappointed, but each side will also be relieved that at least they reached an agreement without undergoing trial and continued litigation.
- When going into mediation, it is also important to remember that there are good mediators, bad mediators, and mediators in between. However, good mediators might not always feel like good mediators, and bad mediators might not always feel like bad mediators. Good mediators will tend to “hold up the mirror” to each party. This means that they will inform each party of the weaknesses of their case and the strengths of the other party’s case. This may cause you to be defensive, and to dislike the mediator or to feel like the mediator is biased. This generally is not the case. In fact, if a mediator points out the weaknesses of your case, they’re doing you a favor. You can generally also be sure that they are doing the same thing to the other party, which is to your benefit. Bad mediators tend to do the opposite. They sometimes fan the flames of conflict by telling you how great your case is and how ridiculous the other side is being. This might make you like the mediator, but ultimately, they will not be able to facilitate an agreement. Rather, this sort of bad mediator will usually exacerbate the conflict until one or both parties walk out.
Can Kelly Peterson Be My Mediator? Can Kelly Peterson Represent Me At Mediation?
Yes, I am available as both a mediator and legal counsel at mediation. I enjoy performing the role of mediator quite a bit, often to the point where I will offer my services as a mediator at a reduced hourly rate. I also represent clients at mediation very frequently.
To hire Kelly Peterson, either as a mediator or as an attorney to represent you during mediation, please visit www.kmpetersonlaw.net or by calling (801) 616-3301 today
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