Mediation is a process in which the parties to a dispute employ a neutral facilitator to assist in resolving matters by agreement, rather than in court. In Minnesota, it is generally expected that the parties to a family law dispute participate in mediation prior to seeking in put from a district court judge.

Written by Roger Fisher and William L. Ury in 1981, the bestselling book Getting to Yes: Negotiating Agreement Without Giving In has become a go-to resource for working through challenging negotiations. As it turns out, the “getting to yes” methodology can also be very helpful in mediating difficult divorce agreements. Below are some key insights that we can apply to divorce negotiations, based on the book’s five-point method.

1. Separate the people from the problem

When you view your ex as “the problem” or vice versa, negotiating a settlement becomes much more difficult. In truth, there are specific issues between you that are causing the split—not any one person. Focusing on the issues rather than placing blame takes you much further toward a solution that works for both.

2. Focus on interests, not positions

When you simply take opposing positions in a disagreement, one person “wins” while the other “loses.” Instead, try focusing on the interests of each person: what do you want in a settlement? What does your ex want? Is there any position you could take that could serve both interests?

3. Generate options for mutual gain

Once you’ve identified each person’s interests in the divorce, start imagining a number of alternatives in which both people stand to gain, turning a win-lose into a win-win scenario. This is key to turning combat into negotiation because both of your interests are now being served.

4. Insist on objective criteria

When contemplating the alternative solutions, you must base the consideration on an objective set of criteria. This is the more difficult part of the negotiation, because both parties will likely give up something they want. Here is where a neutral mediator can be most useful because he/she has no emotional investment in the solution.

5. Know your “BATNA”

Should negotiations fail or you find yourself losing too much ground, your Best Alternative to a Negotiated Agreement (BATNA) is your baseline or safety net—the “worst case scenario” or default course of action you must take if you can’t come to agreement. Knowing your BATNA gives you a fair point of leverage in negotiations as the low point that both parties wish to avoid, helping you both stay motivated to come up with a better solution in the divorce agreement.

Once divorce proceedings have begun, procrastinating is one of the worst things you can do. No one particularly wants the headaches of paperwork, lawyer consultation and other details, but it’s a safe bet that your ex is not procrastinating on his or her end, and you don’t want to find yourself at a disadvantage. Here are 6 signs of distraction you need to watch for when working on your Minnesota divorce.

1. Too busy with work

One of the most common ways to put off divorce details is suddenly to find yourself with too much to do at the office. While there’s always work to be done, you probably don’t have to take on as much responsibility as you are. Discipline yourself to keep your normal office hours and don’t use work as an excuse.

2. Too busy with “other” paperwork

There’s nothing better to distract yourself from something unpleasant than something else that’s only slightly less unpleasant. Now is not the time to start figuring out your taxes, for example, or to start an argument with an insurance company over your recent fender-bender.

3. Over-socializing

From spending hours a day on social media to signing up for three different bowling leagues, it’s easy to find so many after-hours activities that you barely have time for anything else. If you’re overdoing the social life, try limiting your outings to one per week until the divorce is final. Also, limit your social media time to an hour or less per day.

4. Home projects

You’ve spent years avoiding cleaning out that garage. Why all of a sudden are you so motivated to do it now? Major projects at home that suddenly must be done now are a clear sign you’re looking for distractions.

5. Rebound relationship

This is potentially a huge distraction, and also a dangerous one because it might be used as leverage against you. If necessary, press pause on your dating life for the moment. Your new romance will do much better without a pending divorce hanging over it, anyway.

6. Over-scrutinizing the process itself

If you find yourself suddenly unhappy with how your divorce attorney is handling things, or you decide to undo a part of the negotiations that have been settled for weeks, these may be subtle signs of a deeper issue. Divorce can be scary, and it’s easy to create delays subconsciously to avoid facing the day when it becomes official. Changes are fine, but if you’re suddenly finding fault with things you’ve already approved, it’s time to ask yourself why.

Blame it on television, movies, or messy celebrity splits — divorce has a reputation for being a contentious, litigation-based affair, with little room for compromise. Those who have not navigated the divorce process may envision couples screaming and yelling at each other in the courtroom as the judge tries in vain to keep the peace.  Thankfully, this level of divorce drama is no longer a reality for most couples, as mediation allows spouses to complete divorce proceedings in a calm, mature manner.

How Does Mediation Work?

The ultimate goal of mediation is to keep divorce out of the courtroom. Instead of a judge looming over the case, a third-party mediator is hired to act as a peace broker. The mediator listens carefully to both spouses as they voice their concerns, and, from there, offers detailed feedback and possible solutions. A skilled mediator can thereby make the divorce process feel more like an amicable bartering session than a messy courtroom battle.

Mediation and the Science of Cooperation

Millions of years of evolution have convinced people that competition is always better, whether in the classroom, at work, or in divorce court. This impulse can be difficult to overcome, but as Harvard University Professor of Biology Martin Nowak points out, there is great value in ignoring the competitive instinct and opting for cooperation. In his book “SuperCooperators: Altruism, Evolution, and Why We Need Each Other to Succeed,” Nowak explains that successful cooperation often involves a “tit for tat” approach, along with an emphasis on generosity, forgiveness, and optimism. Mediation incorporates all three qualities — and that’s exactly why so many couples exit the mediation process feeling satisfied with the results, despite having made certain concessions.

Mediation works well because it calls upon spouses to be their best selves, even in the face of significant disagreement. When spouses work together, they can achieve favorable outcomes, all while keeping the stress and anxiety associated with divorce to a minimum.

If you choose to settle your differences with your ex through mediation, you can still retain legal counsel from a trusted Minnesota family attorney. Look to the Brown Law Offices, P.A. for compassionate counsel.

Your marriage is ending, and you plan to file for divorce. However, you might be able to avoid a litigated outcome by pursuing mediation. This option provides people with a more private, less expensive and less time-consuming way to separate assets, plan for future financial needs and negotiate terms for child custody and visitation. In fact, Minnesota state law generally mandates that you attempt Alternative Dispute Resolution (ADR) prior to resolving the divorce through the courts.

Per Minnesota Statute 518.619, with respect to handling custody and/or visitation matters, “The purpose of the mediation proceeding is to reduce acrimony which may exist between the parties and to develop an agreement that is supportive of the child’s best interests. The mediator shall use best efforts to effect a settlement of the custody or parenting time dispute, but shall have no coercive authority.”

Mediation Limitations

Since mediation is not binding, a mediator cannot force you or your ex to agree to any terms. The process is also confidential, and in general nothing you say during the process can be used against you. A qualified Minnesota family law attorney can advise you about how to offer reasonable requests and take strong but appropriate negotiating positions.

Be advised that mediation succeeds when the parties play fair and approach the process in good faith. If you inappropriately pressure the other party or look to “score points,” the process will probably fail. You do not need to concede every point, but you should be willing to cooperate.

You cannot finalize your divorce during mediation; instead, you create a formalized, written agreement that you and your soon-to-be ex sign. The court needs to approve this agreement, and it then has the authority to enforce its terms.

When Mediation Isn’t Needed

The process is not always appropriate. For instance, what if your spouse cannot be trusted in negotiations because he or she lied in the past, broke agreements or engaged in other wrongdoing? What if your spouse left the state or the country? What if he or she is in jail or in a mental institution?

The following quote from an article in The Guardian is worth considering: “There are cases where mediation simply cannot work. The proposals acknowledge this to some extent – providing exemptions in circumstances of domestic violence or child protection – in recognition of the fact that parties who have experienced abuse cannot be expected to sit around a table and reach a constructive out-of-court result.

But there are many other circumstances that fall short of this extreme, where mediation may also not be appropriate – when there is a significant power imbalance in the couple’s relationship, for example, or where complex legal issues such as the validity of a prenuptial agreement arise. In these cases, forcing a couple to mediate may simply provide more ammunition for what is bound to be a protracted legal battle.”

Minnesota orders all couples without a history of spousal abuse to use some type of alternative dispute resolution (ADR) before taking their case to court. One of the most common and generally successful forms of ADR is mediation. In this process, a neutral third party, known as the mediator, helps the couple work out their differences, usually resulting in a 20 to 50 percent reduction in costs over a traditional litigated divorce.

The following nine principles can help you succeed at mediating the divorce.

1.    Both parties need to participate actively to make the mediation work. If your ex refuses to engage with the process, or if you don’t believe that you can trust him or her to make a good faith effort, then ADR probably won’t be successful.

2.    Aim for clarity and disclosure. The goal is to identify your and your spouse’s needs based on all the facts of your situation. When both parties are open and straightforward, and when everyone works to invent options, more solutions will be found.

3.    Remember that mediation works! Statistically, the mediation process is more likely to generate compliance with the settlement terms. This is good news, especially if you have children and/or a complex financial situation.

4.    Remember that mediation does not in and of itself create a legally binding settlement. A judge still must approve the arrangement.

5.    Neither party absolutely needs a personal attorney to handle this process. A neutral lawyer can complete your paperwork and file relevant court documents. Some parties even opt to use pro se forms and submit all paperwork themselves. However, even if your divorce appears simple and amicable, you can benefit from speaking with an experienced Minnesota family lawyer about your case.

6.    Be willing to compromise. If you can’t agree about some element, make a counter-offer. Seek to understand your ex’s needs – what’s really important to him or her – and develop possible solutions that you think would appeal to both of you.

7.    Remember: a mediator cannot be called as a witness about the mediation proceedings. All oral and written communications are protected from discovery – Minnesota law considers the process confidential.

8.    Be respectful. Aim to work out differences without fighting or engaging in name-calling or tangential dredging up of the past. You’re looking to find fair solutions going forward to create a better future.

9.    Address potential future disagreements. Plan ahead regarding possible debates over matters such as vacations, moving, holiday scheduling, and paying for extra-curricular activities. Deal with these issues now, so that you won’t have to address them on the fly later.

The vast majority of marital dissolution cases settle short of trial, often through mediation. During the mediation process, a neutral third-party will meet with the litigants, and their attorneys, to attempt to find compromise on disputed issues. Topics for discussion often include:

  • Child Custody;
  • Parenting Time;
  • Child Support;
  • Property Valuation;
  • Property Division;
  • Debt Division;
  • Spousal Maintenance; and
  • Attorney’s Fees

Depending upon the preference of the mediator, and the parties, the mediator may work with the participants in one large group, or may bounce back and forth between two conference rooms.

The mediators that we utilize are experienced family practitioners with specialized training in alternative dispute resolution. Fees for mediation are typically split between the parties. Mediators charge an hourly rate for their services.

Mediation is a much less expensive option than traditional litigation, and leaves the parties in control of the case outcome. The case may be resolved much quicker and the relationship between ex-spouses tends to be much more respectful after reaching a collective settlement. Children are the direct beneficiaries of this improved level of communication.

For these reasons, we strongly encourage our clients to participate in the mediation process. Our commitment to those we represent involves taking the least expensive road to resolution first. Certainly, if we can’t settle a case, we’re prepared to take it to trial. But, most clients appreciate our common sense approach to concluding the dissolution process.

When people mediate, they bring their conflict to a place where they try to settle their dispute. To assist with the process, an impartial third person, or “mediator” helps them reach an agreement. The mediator does not take sides or make decisions. Rather, he or she should be fair to all parties and help them find a solution.

More and more individuals are trying to resolve disputes through mediation. While this process can occur without the assistance of professionals, sometimes problems arise, and individuals need to seek counsel or advice. Often during divorce, individuals need to work out one or many problems with the other spouse. When they ask a mediator to help them solve a problem, they buy into a process that allows a trained third party to use facilitative skills to help them resolve their conflicts.

In certain situations, courts will require couples to mediate. This is called court ordered mediation. A judge may order couples to mediate certain issues that are difficult to resolve. For resolving parenting time conflicts, a judge has the discretion to assign an expediter to help couples set up a visitation schedule for their children.

When couples seek mediation voluntarily or by court order, they are trying to resolve some routine problems that come up in divorce. Problems that people bring to mediation may include visitation, child support, parenting responsibilities, spousal maintenance (alimony), property division, debt division, and/or division of financial assets. The opportunity to mediate allows parties to take the time to address all their concerns and, with the mediator’s help, to reach a workable compromise.

People often prefer to mediate rather than go to trial. Individuals may mediate before separation, and before, during and after the divorce process. In fact, a final divorce decree can state that for future conflicts, parties agree to first seek mediation to resolve problems that come up after their divorce is final.

Mediation may not be a good choice if:

  • A person or his/her children have been verbally, physically, emotionally or sexually abused by the other person;
  • One person fears the other person or doesn’t trust the other party to be fair or honest ;
  • One person is not ready emotionally to mediate;
  • The mediator is not treating either party fairly;
  • One person has difficulty making decisions; or
  • There is a power imbalance the mediator cannot neutralize.