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What is the #1 Biggest Mistake I see in Mediation?

Why Trying to "Win" Mediation Will Get You Nowhere.

As a California mediator, the most common mistake that I see parties make in mediation is trying to "win" mediation. By "trying to win" mediation, I am referring to parties trying to prove their case, either through facts or bluster, in a mediation session.

In divorce mediation, the mediator's goal is ultimately to assist two parties with different interests to arrive at a settlement that leaves both parties satisfied. The mediator is not a judge, and is not an arbitrator. The mediator has no power to decide your case, and cannot force either party to sign an agreement.

When you try to "win" a family mediation, you may find yourself defeating your own purpose. In mediation, the goal is to arrive at a settlement, not to win a case. While it may feel good to vent, a mediation session is not the best forum for venting your frustration.

What Should You Do Instead?

Instead of trying to "win" mediation, you should instead focus on your goals, and what kind of outcomes you might find acceptable. One helpful strategy is to break the entire case down to the specific issues, and, for each issue, to think about (1) what kind of outcomes would you would find acceptable?; (2) what kind of outcomes would be ideal?

When breaking your dissolution case down into the core issues, you should think about the following common issues and sub-issues:

  1. Child Custody

  2. Physical Custody and Parenting Time

  3. Where will the child or children primarily live?

  4. Do the parents live close enough to share 50/50 parenting time?

  5. What does an ideal parenting schedule look like?

  6. If we cannot agree on my ideal schedule, is there any less perfect schedule that I can live with?

  7. How should we do exchanges? Where? When?

  8. Legal Custody

  9. How will we make decisions relating to school?

  10. How will we make non-emergency health decisions?

  11. How will make religious decisions?

  12. How will we pay for child support?

  13. Child Support

  14. It's a good idea to begin with the child support guideline for your jurisdiction. More information for the California child support guideline can be found here.

  15. Can we agree on guideline support without going to court?

  16. Is there are reason why guidelines child support is not appropriate?

  17. Do we wish to deviate (pay more or less) from guidelines support?

  18. How will we handle other expenses (for example, orthodontic expenses, non-covered medical expenses, recreational and school expenses)?

  19. Who will provide health insurance for the child or children?

  20. Division of Property

  21. Begin with creating an inventory of all of your assets are debts

  22. If you are in a community property state

  23. Classify each asset as a "community asset" or "separate asset"

  24. Classify each debt as a "community debt" or "separate debt"

  25. Consider whether you may have any "mixed" assets/debts (meaning assets/debts that need to be apportioned among community and separate interests).

  26. Keep in mind that property law can be very complicated, and vary by jurisdiction. It is wise to consult with an attorney to understand your property rights in a divorce or dissolution.

  27. Spousal Support

  28. Depending on the length of your marriage, and other factors in your marriage, one party or the other may be entitled to spousal support. Some people refer to spousal support as "alimony".

  29. In California, there are two types of spousal support, and one or both may be at issue in your case.

  30. Temporary Support (Pendente Lite)

  31. Long Term Support

  32. It's a good idea to consult with an experienced attorney about how spousal support obligations or rights to spousal support may arise in your case.

  33. In any event, it's a good idea to consider:

  34. What is an acceptable number for temporary spousal support, if any?

  35. What is an acceptable number for long term spousal support, if any?

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