By: Janet Gemmell, Board Certified Family Law Specialist, Divorce Attorney Extraordinaire, and Certified Family Financial Mediator
Mediation can feel like an overwhelming process, but as a client, you have more control than you might realize. A client recently asked me how they can control the outcome of mediation while we prepared for a full day event in Durham, and I realized everyone wants to know this information. When mediation deals with your child or children, such as child custody mediation, having a desire to control the mediation is normal. While you cannot dictate the other side’s actions or the mediator’s role, you can control many aspects that ultimately determine the outcome mediation. Here’s how you can take charge:
1. Control Your Effort
Your commitment to the process is key. Mediation often requires persistence, so invest the necessary time and energy. Approach it with the mindset that you are there to resolve, not just to negotiate, and be prepared to work through every issue until it’s resolved. Decide to have staying power to make it through the whole day and put all your effort into resolving by not holding anything back. Mediation is confidential, so you can make your best offer, and it cannot be brought up in court that you are asking at court for something more than you offered or would have settled for in mediation
2. Control Your Preparation with Your Attorney
Work closely with your attorney before mediation. Review all documentation, understand your rights, and develop a clear strategy. Preparation is power. The more you know about your case, your legal standing, and your desired outcomes, the more confident you will feel.
Make an offer prior to mediation, in writing. Come to mediation with a document for each item you are asking for that details the balance (if financial) or the reasoning for your position (like a child’s school calendar).
3. Control Your Responses and Reactions
Read up on the differences between responses and reactions. Mediation can bring out strong emotions, especially when you are worried, embarrassed about prior actions or behaviors, or scared about your future. Expect to be triggered and therefore, be mindful of your responses. Take a breath before responding and don’t react negatively with hostility, yelling or threats.
In a recent mediation I had in Lebanon, North Carolina (in Durham County), I heard the other side down the hall in another room yelling and threatening to leave. I knew at that moment that my client and I were “in control” of the mediation because my client kept a cool head. Measured responses help maintain a constructive environment and prevent emotional escalation. My client has a great outcome that day and likely “won” in the grand scheme because of the calm manner in which responses, instead of reactions, were made.
4. Control the Questions You Ask
Asking the right questions can help clarify unclear points or open up new avenues for resolution. Don’t hesitate to ask your attorney or the mediator to explain any aspect of the process. The more informed you are, the more empowered you will feel. Do not suffer in silence. If you have a question about an asset, a day on the calendar, how custody exchanges will work, or anything else the best and only place to ask it is while you are actively in mediation. If you have an idea, present it. You never know what the spark that ignites the fire of settlement will be.
5. Control Your Words and Word Choices
Choose your words carefully. How you express yourself can influence the tone of the mediation. Avoid inflammatory language, stay professional, and focus on solutions. The words you use will help guide the mediator and the other party toward resolution. Don’t forget that you have to sit in a room with your attorney all day and saying harmful, ignorant, or irritating things will impact you, how your attorney feels about you, and how others treat you. Human behavior and psychology exist … be aware of your words and word choices and to not alienate your allies in mediation – you attorney and often the mediator.
6. Control Your Schedule
Mediation can be time-consuming. Ensure you’ve planned ahead for child care or other commitments so you can stay focused for as long as necessary. Flexibility with your schedule can make a difference in the success of the process. Mediations can go past dinner, a child’s bedtime, etc. so plan to be in mediation for as long as it takes.
By controlling these aspects, you’ll be in a strong position to navigate mediation effectively, working toward the best possible outcome. Your active participation, preparation, and poise will be invaluable as you work toward resolution. So can you control your mediation, yes you can!
