Mediation Tips and 4 Things NOT to Say During Mediation

When couples go into divorce mediation, most of the time they have the best intentions, meaning they want the process to work. Unfortunately, some people make statements during mediation sessions that end up undermining the process, to the point where mediation ends up unsuccessful. In this article, I’d like to offer some mediation tips, and some things you should definitely not say during a mediation session.

Here are 4 mediation tips–4 things you should not say during divorce mediation:

1. If you do not agree to this, I will just go to court. I know I will get what I want in court.

Since mediation is a process of negotiation, this is an announcement you do not want to make, as it makes compromise and finding a middle ground or resolving your issues impossible. Mediation tip: No one knows what a judge will say in court.

Why should your spouse agree to what you want when you are not willing to listen to another point of view? There is no upside to what my partner, Brian James calls “drawing your line in the sand.” Either you play fair and are willing to listen to your spouse, or you are not properly engaged in the process. If you have an open mind, you will likely succeed in mediation.

2. My attorney said I can have (fill in the blank here) in our settlement.

Whether it is a certain parenting schedule, the house, keeping your retirement when it is twice that of your spouse’s or Christmas Eve overnight every year, your attorney cannot dictate what agreements you might make in mediation.

Your attorney can tell you: what the law is on a certain issue, how judges typically allocate retirement accounts, how to calculate child support based on your salaries, who provides health insurance for the children, or how many overnights you each have. Your attorney cannot predict what will happen in mediation. In mediation, these are your agreements and no one else’s.

3. I am keeping the house. It is best to have stability for our children and I do not want to move.

That sounds good, provided you can afford to keep the house, your spouse does not want the house, and he or she feels it makes the most sense for the entire family. In mediation, each parents fill out financial affidavits and we help you determine if keeping the house makes sense. Once again, do not draw your line in the sand and announce what you will do or what you are keeping. That will not go smoothly when you are trying to negotiate in mediation. Hopefully, after thoughtful discussions with the help of the mediator will determine an agreed upon solution that both partners feel good about. I demand 50/50 parenting time.

Since Illinois Child Support is determined based on the number of overnights you each have with the children, salaries and who pays for health insurance for the children, people often walk into mediation announcing that they need 146 overnights; the magic number where the balance tips and Child Support is lowered for the parent who has fewer overnights with the children, or 50% of the parenting time.

If the other spouse has done the majority of parenting, or you travel several times per month for work, 50% parenting time may not be feasible. Maybe your children are too young, or one is still nursing, so they need to be with the parent who has done the majority of parenting up to this point. There are ways to give one parent additional time, even if the other has more weekday nights, so that it makes sense for everyone and keeps the children’s best interest in mind. More Monday holidays or additional time in the summer are just two of the ways this can happen.

4. I make Christmas happen so I should have every Christmas Eve overnight.

Sadly, many of our mediation clients cry when discussing Christmas time with their children. They cannot imagine dividing time on this magical holiday when they have always woken up with their children before dawn for opening gifts left by Santa. Unfortunately, unless they are in a place where they can actually share Christmas morning or Christmas Eve with their children, the holiday will need to be divided or alternated some way so that each parent gets some time with the children.

Unlike Thanksgiving, which many choose to celebrate on Friday instead of Thursday, or alternate years, or one does breakfast, Christmas seems to most people like it can only happen on the actual date specified by the calendar. So, that’s why to declare that you are going to have the Christmas Eve overnight every year can feel upsetting and hurtful to your soon-to-be spouse. Mediation tip: Treat this like a discussion. You might end up with Christmas Eve overnights every year, but expecting it going into mediation is setting you up for confrontation and ultimately failure.

In closing, these are just a few of the statements people make in mediation which can cause irreparable harm. If people in divorce mediation cannot listen to their spouse or imagine a different way to solve a problem, the process becomes challenging. Trying to be reasonable in and giving your spouse the benefit of the doubt goes a long way towards successful mediation.

We realize it’s not easy. Feelings of distrust, anger, bitterness, and resentment can cloud good judgment, and make you want to say things you shouldn’t. But if you keep your eye on the endgame and focus on the outcome you truly want, and if you are willing to compromise on some things, you will benefit and your post-divorce life will look wonderful. We are here to help if you’d like a complimentary consultation.

Ellen Feldman has been working as a mediator  since 2007. A graduate of Smith College and Indiana University School of Law, Feldman previously worked as an attorney for 15 years practicing commercial litigation. Since 2006, Ellen has been a volunteer for The Lilac Tree, an Evanston based nonprofit organization assisting women through the process of divorce. Additionally, Feldman completed Family and Divorce Mediation Training through DePaul University Center for Conflict Resolution and Advanced Family Mediation. She is a court-approved mediator for the 19th Judicial Circuit Family Court of Lake County. Learn more by visiting the C.E.L. & Associates website.

Like this article? Check out, “How to Prepare for Mediation both Emotionally and Practically”