Part 2. Mediation

Around July 2004, i informed my wife that I intended I was either going to file for divorce or work out a separation agreement in front of a mediator. She chose the latter path.

There are many good reasons to choose a mediator. The first is price. At $100-$150 per hour they are significantly cheaper than lawyers ($250-$500 per hour). They are also non-adversarial (they don’t take one person’s position over another) and solution-oriented (the will tend to not run up billiable hours forever). My mediator also charged an additional fee for drafting the agreement and having it witnessed by a notary. Professional mediators can be located here.

The process.

A mediator will usually see each person separately to determine the objectives of the mediation and the outstanding issues. They will usually provide guidelines for conduct during the sessions (such as no swearing or abuse) and will provide an opportunity for couples to occupy separate rooms if the level of conflict is too high.

The Results 

In my case, the mediator outlined what she thought would be a probable outcome of a court case and then proceeded to work through the issues. In a suprisingly short period of time we have reached consensus on child custody (my children were 14 and 12), visitation, child support payments, alimony, and property division (I was to give her a six figure cash settlement in exchange for the remaining assets). Clauses were also added stating that any attempt at reconciliation would not extinguish the agreement and that anyone contesting the agreement (and losing) would pay the legal fees of the other party.  Because my wife was resistant to a divorce petition, the agreement was drafted as an attachment to a petition for separation. It was then signed by both parties in the presence of the mediator and a notary. I thought it was a very fair and comprehensive agreement.

The aftermath

The agreement required my wife and kids to return to our home town, several thousand miles away. She called every night asking, “do you want me to come back, I’m coming back”. Every night I said,  “No, don’t come back.” Three weeks later she landed on the doorstep citing her rights under the agreement to collect personal property. She spent the night at a friends, then came over, and started claiming she would do anything to make the marriage work. It turned out the whole time she had been away she had told no-one of our separation agreement.

Thinking I was protected by the separation agreement I began a period of reconciliation that lasted about a year, which included some of the therapy sessions discussed in the previous post.  After a year, I officially filed for divorce (see the next post). My wife suggested that things had changed and we should re-enter mediation. I agreed to give it a try to make the transition smoother for my kids. I learned much later that those with borderline personality disorders cannot be trusted to stick to any agreement. Naively, I thought she would work out a deal in the best interests of the children.

The mediator was greatly surprised to see us and told me off for not filing the previous agreement for the court. After a week or two of negotiations, we were unable to reach an agreement. My position was that I had a perfectly enforceable earlier agreement and I would not change major items. My wife asked me to pull the petition for divorce in a show of good faith, which I did, but we argued over relatively minor issues and no agreement was reached. The mediator yelled at me for being so difficult but I thought I was in the right. Naively, I thought the court would respect the earlier agreement. In hindsight, she was 100% correct.

The final mediation we attempted was with a retired family court judge who was recommended by my first lawyer (he allegedly had a 98% success rate). This was a disaster. The judge approached things as an arbitration rather than a mediation (meaning he felt he could rule on things that we did not agree to). His first question to me was “So how often do you want to see your kids” to which I replied “Everyday”. His response was that I was not being reasonable! After a series of exchanges like this, I terminated the mediation session.

TOTAL COST for ALL MEDIATION: ~$3000

 Lessons Learned

1. Use mediators if at all possible to reduce legal costs.

2. Don’t mediate with someone with borderline personality disorder, see http://bpd411.org/mediatewithbpso.html

3. Be very careful with using a mediator who already knows all the answers and tries to force a solution on you – that is NOT mediation. Lawyers and ex-judges are very fond of this.

4. File all agreements with the court as a formal separation agreement or post-nuptial agreement or whatever.

5. Think very carefully about being a nice guy – nice guys tend to finish last in divorce.

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2 Responses to Part 2. Mediation

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