Nolo's Essential Guide to Divorce - Emily Doskow [48]
Reality Testing
When you have reached agreement on everything, or seem to be coming close, the mediator will help you make sure that it will actually work by doing what is often called "reality testing." Using all of the information gathered about your family throughout the course of the mediation, the mediator will ask detailed questions about how the proposed settlement might work in real life. This may force you to go hack to the brainstorming or negotiating stages, but it will he well worth your time-you will end up with an agreement that will last.
Your consulting attorneys should also do some reality testing, and you may make some revisions to the agreement after they get through with it. Be patient with this part of the process-it's another piece that's critical to making sure you have an agreement that will stand the test of time.
It seemed like a good idea at the time ...
My wife Rachel and I were determined to share custody of our children exactly 50-50 when we divorced. We went into mediation with that agreement and announced it to the mediator, saying it was agreed and we should just use the mediation to talk about our property and spousal support.
"We worked everything else out with the mediator's help, and then the mediator made us talk about the parenting plan some more so that he could include it in the settlement agreement. He asked us what our kids do in terms of activities, where each of us lives, what our schedules are like, and where the kids go for their soccer, music lessons, and gymnastics practice. Once we started talking we could see that an exactly equal timeshare wouldn't work well for our kids, so we had to go back and start over on the time-sharing.
"The mediator helped us come up with a schedule that should work for us all. Rachel's a schoolteacher so she has time in the afternoon to ferry the kids around-so we agreed the kids would be with her more of the time. That meant the child support calculation changed and I have to pay more, which of course I'm not happy about, but I'm more unhappy at losing time with the kids. And neither of us likes the idea that Rachel has to continue to do more of the chauffeuring. But the mediator was great. He let us both talk about what we didn't like about it and let us take our time accepting that this is the best thing for our kids, at least for now. In the end, we both feel comfortable with the solution we came up with."
-Divorced dad
How to Make Your Mediation a Success
There are a number of things that you can do to help keep the mediation process moving forward and get the most out of it.
Don't hold back any information. Disclose all the financial information that's in your possession at the very beginning of the process, if you haven't given it to your spouse already. This will make the mediation go more quickly and be more effective. If you have a real need for confidentiality, such as for sensitive business information, ask your mediator about the possibility of preparing a special protective order, a binding legal document that a judge will sign, stating that neither you nor your spouse will disclose the information outside of the mediation session.
Do what you say you will. Don't procrastinate or make excuses that delay the process. For example, if you agree to get estimates of how much it will cost to do some critical repairs to prepare the house for sale, don't wait until the last minute to make those appointments. If the estimates aren't ready for the scheduled mediation session, you, your spouse, and the mediator will all waste your time.
Show up. Don't cancel a mediation session unless it's truly an emergency. Momentum is an important ingredient in the mediation mix.
Take your communication cues from the mediator. The mediator is, no doubt, an effective communicator; take the opportunity to improve your own communication skills. Use neutral