The mediator may also start to explain the legal principles that govern your divorce. The mediator may explain the laws of your state regarding property division, give examples on how judges determine alimony, and introduce the child support guidelines in the state. This information is being shared by your mediator to give you a better understanding of what would happen if a judge decided these issues.
You should resist the temptation to ignore this part of the process if you are confident that you know your case well and already have some ideas for a settlement. Although you may want to jump right into the negotiations, it is the mediator’s responsibility to ensure that both of you have divorce lawyers the information and facts you need in order to come to a legally-binding settlement.
This second phase can last two to three sessions, depending on the amount of preparation and information you have gathered. The mediator may postpone a discussion if there is pending information that will be needed in order to resolve a particular issue, such as obtaining an appraisal to determine the division of real estate.
The mediator will help each partner to define their needs and interests. The mediator will discuss the desired outcome, reasons why each spouse wants this result, as well as their concerns, values, goals and priorities. Identification of needs and interests can help frame the main goal of mediation, which is to reach a successful settlement for both spouses.
The needs and interest of spouses often overlap. It is more likely to happen if spouses have concerns about other people such as their children. This increases the chances of a settlement when there is overlapping. It’s impossible to reach an agreement which fully satisfies the needs of both parties. Parties often compromise in divorce, where limited resources are divided among two households. When a mediator is able to identify each spouse’s needs and concerns and then work with them, there are high chances that compromises that can be accepted by both parties.
Some mediators believe that if you conduct the framing phase with both spouses separately, it will better prepare each one of you for the following stage: negotiation. Some mediators prefer joint sessions, believing that spouses can better understand each other’s perspective when they work together with the mediator. Both methods can be effective, but separate sessions will make mediation more time-consuming (and expensive) because the mediator must repeat everything that was said during the session to the spouses.
Negotiations begin after the mediator helps the parties frame their issues and concerns clearly. The negotiation process usually begins with an investigation of the possible solutions to each divorce issue. The mediator helps the couple brainstorm their solutions and assess them until they have come up with a solution that works for both. The “shortlist” is almost always the result of compromises made by both parties.
At this point, most mediators focus on the solution-oriented aspect of negotiations. Finding settlement options that fully address both spouses’ most important interests is the problem. This will allow you to trade off options and avoid getting stuck in zero-sum bargaining where the spouses’ gains are each other’s losses.