I have never been a huge fan of traditional mediation, although I believe wholeheartedly in negotiation. The Law Offices of M. Jude Egan treats divorce mediation like more traditional mediation. Divorce lawyers are taught to mediate divorce cases on “fairness.” Sit down in mediation and tell the mediator what you think a fair outcome would be. I believe that each side should come to mediation with knowledge of the law and an understanding of what a court would likely do. This allows you to have an understanding of your “best/worst alternative to a negotiated agreement” (the classic book, Getting to Yes, Fisher and Ury calls this your BATNA/WATNA). This is what happens if you don’t get an agreement.
We work with divorcing couples in my office regularly. It is mediation but it is also education. I typically represent one party and negotiate with the other. I advise the other to seek an attorney after they make an agreement, i.e., I do not have them sign the Agreement in my office but rather have them have it reviewed by a capable attorney in the area (usually I give them some names), so that they make sure that it is well understood and there are “tricks.” I explain the law to both sides in this negotiation, so both know their liabilities. I tell the unrepresented party the risks associated with any particular position such that when they go and see a lawyer, the lawyer should not tell them anything they don’t already know.
I have settled hundreds of cases in this manner. I think it’s effective and fair. I think it helps both sides get what they want but also within the realm of reason about what the law would give. We meet with people in this manner three-four times per week and it is a part of my practice that I find highly rewarding. I believe my personality is well suited to this kind of negotiation. We work hard to see if we can get each party the thing they want the most in exchange for something they do not want as much. I think when two people sign a settlement agreement and walk out of my office feeling like they “won” the divorce, that is an incredible situation. More than one divorcing couple has told me that their ability to co-parent has increased after such a negotiation. I remain convinced that this is better than a pure “fairness” based mediation.
