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Mediate, don't litigate: How to settle your divorce

A divorce is a family law case—the Law Office of Bryan Fagan, PLLC, our family law attorneys. However, a divorce is more personal than a personal injury case and often has more moving pieces regarding property and finance than a complicated business transaction. With that said, you and your spouse will have intimate knowledge of your circumstances better than any other person. That's a good thing, too. With as many moving pieces as there are in your life, how can you expect a stranger to be able to produce a more sensible and logical outcome than when you and your spouse put your heads together?

Even though nobody knows your life and marriage better than you and your spouse, parties to divorce cases ask judges to have the final say on their lives with regularity. The judge will have a relatively short amount of time to listen to the evidence to make a decision one way or another. That decision will stay in effect until you or your spouse attempt to modify it in the future. Again, explain to me how this judge is better suited to decide your life than you are?

Keep in mind also that not only will your divorce case determine the outcome of a protracted legal battle, but it can also impact your relationship with your spouse moving forward. If you have children with your spouse, you will be co-parenting with them in the future to one degree or another. If you do not have children, it could be that you are ordered to pay spousal support, which requires at least some contact on occasion, I would imagine. Either way, how you treat your spouse during the divorce will impact how he treats you afterward and vice versa. As such, wouldn't it make sense to attempt to meet each other halfway on as many issues as possible?

Your divorce will progress differently than any other legal case.

If you are a business owner and have been involved in lawsuits or are a doctor and sued for malpractice, you have experience dealing with cases and courtrooms. However, your experience in those areas will do little to prepare you for a divorce. In a divorce, your relationship with the person on the other side of the case is more intimate and unique than any business owner-client relationship or even a doctor-patient relationship. Do not underestimate the effect that your willingness to negotiate can have positively or how your unwillingness to meet your spouse in the middle can have negatively.

If you all cannot negotiate and settle your case, it will end up going before a judge in a contested trial. This trial means that information (evidence) will be presented to a judge to assist them in deciding on the contested issues in your case. Your personal information (much of it not pleasant to discuss) will be brought up and discussed in public. It is possible that the outcome of your divorce could be exactly what you want it to be, but that is unlikely. More likely is that you and your spouse will both walk away from the divorce feeling like your concerns were not sufficiently addressed. Your perfect outcome is a pipedream, but you will spend real-world dollars to get to that point.

Prioritize your goals before beginning the divorce

You should have a list of objectives and goals that you wish to accomplish before your divorce begins. Starting with your most important priority and finishing up with your least important, rank the goals in your case and then meet with an attorney to discuss how you can go about accomplishing as many of those goals as possible. Consider that many divorces result in parties not accomplishing their most important goals, but the secondary goals written down are often accomplished with greater ease.

Mediation is a divorce case.

Mediation is a formalized settlement negotiation. You, your attorney, and your spouse, and their attorney will select a third-party attorney to mediate your case. When you arrive at the mediator's office, you will be in one room, and your spouse will be in another. The mediator will act as a ping pong ball, walking back and forth between your rooms, conveying settlement offers, playing devil's advocate, and attempting to anticipate how your judge is likely to rule on a particular subject. Their job is to work with you on achieving a settlement.

If you can settle your case, a Mediated Settlement Agreement (MSA) will be produced that details the terms of your settlement. From there, your attorney or your spouse will draft a set of final orders that reflects the terms of your settlement agreement. Your divorce will be essentially done at this point, with no need to ever appear in a contested proceeding before the judge.

How can you best take advantage of the opportunities presented to you in mediation to settle your case? I have learned that there are three steps that you can take in this situation to avoid any lengthy litigation battles and ensure your case can settle in mediation. While doing each of these will not necessarily be easy, they can be done with some concerted effort.

Treat the participants with respect.

It is easy to fall into the mindset that everyone involved in your divorce case is against you if things are not going your way. Your attorney's job is to educate you on your case's issues and assist you in making decisions. Do not alienate your attorney by questioning their loyalties. Just because your attorney (or the mediator) argues against a point you've made does not indicate that they are against you. Remember, you are free to disregard what the attorney or mediator tells you. They want to make you aware of as much as possible, however, so that you can make a good decision for yourself.

Please do not offer to take it or leave it proposals.

Nobody likes to feel like they are being pushed around. Divorces are no different. In mediation, I have been approached by opposing parties with offers that take it or leave it offers. We are given a set amount of time to deliberate the offer, or it will be pulled back. A divorce is not the time to try and assert strength or anything similar. Mediation is an opportunity to assert reasonableness and forward-thinking. After all, you can catch more flies with honey than with vinegar.

Provide as much information as possible in mediation

Knowledge is power, and if you provide your spouse will all the information you have (and vice versa), you will each be able to see where the other is coming from. Holding back information leads to questions about why you are proposing a particular settlement offer. This causes people to become suspicious and eventually unwilling to trust you. If you display a willingness to be fair and open with information, the favor will likely be returned.

Questions about mediation and divorce? Contact the Law Office of Bryan Fagan, PLLC

If you are going through a divorce, you should know that attorneys can help you at a reasonable cost and with your goals in mind. The attorneys with the Law Office of Bryan Fagan, PLLC, are those attorneys.

We offer free of charge consultations with a licensed family law attorney six days a week. Please get in touch with us today to set up a consultation so that we may begin to help you and your family make it through your divorce.

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