Meditations on mediation

If you’re reading this you’re, unfortunately, new to divorce. It’s a scary prospect looming before you.

I’m not new to this. I’m a CPA, Certified Financial Planner™ professional, and a Certified Divorce Financial Analyst® professional, so I work in this field every day. And (as you can read in my story), I’m also divorced.

So let me help you get through this.

Let’s start with mediation. One of the FAQs on my website asks “Will you be there during mediation?”

But since you’re new to this, you likely don’t even know what mediation is.

So I’m going to explain it to you here, broad strokes, pros and cons. And then you’ll know why that question, above, is so frequently asked.

Why mediate?

There are basically two ways to settle a divorce: Mediation or trial. Since you’ll be hiring a family law attorney (a.k.a. divorce lawyer), you might think: “Hmm. ‘Lawyer’ equals ‘courtroom’ equals ‘trial.’” But it doesn’t work that way.

Going to trial is almost always the court (no pun intended) of last resort. Nobody wants to go to trial. You don’t want to haul all your arguments before a judge, who has the final say in the matter.

Even bigger reason to avoid trial: The expense. I guess you could argue that attorneys are incentivized to go to trial, since they can make more money, but you’ll see, as soon as you hire your attorney (and trust me, you need to hire one), that they’ll go out of their way to dissuade you from going to trial. They’ll warn you just how expensive it is.

And it’s expensive for both sides. So it’s one thing that you and your spouse can usually agree on, right off the bat. It’s really only the truly contentious cases which go to trial.

And thus, mediation.

What is mediation?

Mediation is a structured process, facilitated by one person: the mediator. Broadly, there are two kinds of mediation possible:

Formal mediation takes place in one location, at one time, in one day. Imagine two different rooms in the same office building: one for you and your team, and the other for your spouse and his. The mediator goes from room to room, getting offers from one side, presenting them, and then returning with counter offers.

This goes on until the day is done. The up-side is that the whole process is completed in a single day.

And that’s about it for the up-side. These mediations generally get going very slowly—think “hurry up and wait”—and then grow crushingly stressful as the final deadline approaches toward the end of the day. There’s a rush to get things done. You’re forced to make life-changing decisions on the spot, with no time to think it over or second-guess.

As you can imagine, I’m not a big fan of formal mediations.

Informal mediation is stretched out over several days and several sessions, usually lasting about a half day each. Here, you have time to think, to breathe, to consider, and to huddle with your attorney and someone like me.

These are the types of mediations that I overwhelmingly prefer.

The choice is yours: Just as you’ll decide, with your spouse, whether or not to go to trial, you’ll also decide on the type of mediation. And even the mediator.

Who does the mediating?

Generally there are two types of mediators. Many are retired judges. They, not surprisingly, bring a courtroom perspective to the job. That means “judging.” It also means “bringing along their previous biases.” Judges in Arizona earn about $10k a month—and, as I’ve found, they can’t imagine that anyone, in any case, would ever need more than what they make. That might affect your situation, and your choice of mediator.

The other type of mediator is one who’s taken special mediation training. Their job is not to judge, but to be neutral. They’ve learned how to resolve conflict, and move people toward a mutual decision.

It all sounds much better, doesn’t it? Yes, it’s nice, but it affects my role—and that FAQ I’d teased about—quite a bit.

Let me explain.

A neutral mediator works by quickly “taking things off the table.” They’ll try and find anything that’s already agreed to, and move on to the remaining items. And since they’re neutral, they won’t judge what’s happening.

I’m not neutral. I’m on your side. I work with you attorney. So sometimes, something—something financial—gets taken off the table early, and then you’re asked to agree to one of the remaining items… but what you agree to may be affected by what’s already off the table, when it should be put right back on it.

The answer to my FAQ—“Will you be there during mediation?”—incidentally, is a resounding “Yes.” I’ll be there. I need to be there as critical settlement offers and counter-offers go back and forth between you and your soon-to-be ex. I’ll use my expertise, experience, and sophisticated software to model what-if scenarios for you, on the fly, so you and your attorney can weigh the value of a given proposal—and make a good counter-proposal.

Quick example: Let’s say your husband owns a business. If he doesn’t want to split that with you, he’ll need to split other assets, such as a 401(k). That gets really complicated, quickly, because a seeming “dollar amount” of one isn’t worth the same as the “dollar amount” of the other—when you factor in things like time, the way the market might trend, taxes, your future financial needs as a single person, and so on. Without me, right beside you and your attorney, you’re flying blind.

Above and beyond

And picture this: Imagine you and your attorney show up at mediation—and your husband shows up with his attorney, and his financial expert, and you don’t have one. You’re immediately at a disadvantage.

Given my credentials, I can—and will—help you after the divorce, too. I’ll help you get your financial house in order, with a plan that fits your needs, to help you be a good steward of what is now your own money. This is especially important given that most settlements for, say, spousal maintenance (alimony) or child support get reduced over a pre-set period of time, and you need to be ready to be on your own across that transition, and beyond.

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