by Jan B. Gilman-Tepper
1. Preparation, preparation, preparation. It is a must. You should have pre-prepared your asset and liability worksheet with all the supporting documentation you can find. For example, if you list a Bank account like this: Bank of the East $2,170, then you should have a recent statement from that Bank showing the current balance as: $2,171.95. The figures you use on the spreadsheet should be rounded to even numbers where possible. The reason is you need to be able to estimate certain groups of assets that could be moved from one spouse’s portion to the other spouse, if the facilitator needs to make up a gap to get to an equal 50-50 division of assets and debts
2. Don’t forget the debts! I have been in countless mediations where during the mediation one side or the other raises a debt, such as to a parent or a previously undisclosed credit card. This causes big resentment and disappointment. Always let the other side know about all of your client’s debts in discovery and inquire of the other spouse how they are paying for their attorney fees. Better to learn upfront, that the other spouse is charging their fees on a new credit card. Knowing the REAL debt situation for both spouses can lead both spouses to a realistic settlement with less resentment and surprise.
3. Remember the example of the ORANGE story of the Mom who overhears her two daughters fighting over the last orange. The Mom intervenes by assuming both want the orange to eat so she cuts the orange in half and gives each girl one-half. Both girls run away crying! Why? One sister didn’t want to eat the orange, she only wanted the peel to be able to make some delicious frosting with orange peel zests in it. The other sister wanted to make orange juice, but she needed the whole orange. By not stopping to listen to the real interest each girl had in the orange, the Mother made neither one happy. This can happen at settlement facilitations. Always take the time as a facilitator to really listen to the wants and desires of each spouse. As an attorney for one of the spouses, always listen to what your client really wants and coach them to be willing to give up something to achieve their main goal.
4. Compromise does not equal losing! So many times, attorneys take an uncompromising stance in settlement facilitation because they view compromise as allowing their client to “lose an issue”. Of course, compromise is essentially trading interests. One spouse really wants to keep a business and to run it long term. The other spouse wants his or her full value for one-half of the value of the business. To pay out assets equal to the full value of one-half will cripple the business. Solution? Trade-outs. What other assets will help make up half the value in the business? Trade assets around giving the full value of the business to the business spouse and other assets to the non-business spouse to equal half the value. If there are insufficient assets to offset half of the full value of the business, consider a note with monthly payments. Often this will break a log jam and other issues can then fall into place.
5. Set reasonable expectations. Everyone loses when two people end up resolving the end of their marriage in Court. There is a value to reaching a settlement. What is the value? It is intangible and incalculable. However, that doesn’t mean it does not exist. Preparing the client that no one person is going to win on every issue and that picking the most important issue and being willing to compromise on some of the others is probably the best preparation for success. We teach our clients the definitions of success from the first day we meet them. If we remember that we must teach compromise as part of the process, we serve them well. Learning what is important to your client, putting that forward in a positive manner and keeping in mind that there will be some compromise, will lead to a successful mediation.