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The ways to ruin your chances of settling your divorce in mediation

By Steven Benmor

Mediating your divorce is an opportunity to try and settle your case without going to trial. Mediation is a fast, fair and cheap process. Litigation is long, hostile and very expensive. After a trial, both the winners and the losers, often wish they could have avoided litigation and reach a settlement in mediation. However, to be successful in mediation, both sides must be committed to listen to the other side, make concessions and leave with a different outcome than they had hoped for. Mediation is hard work. It is hard for everyone – the spouses, the lawyers and the mediator. The only mediations that work are the ones where each side is ready to do the ‘heavy lifting’ to avoid a trial. Not all are. There are cases where the lawyers really want to settle, but their clients don’t. There are cases where the clients really want to settle, but their lawyers don’t. There are cases where the clients and the lawyers really want to settle, but the mediator is ineffective.

Here are three steps you can take in advance of mediation to ruin your chances of settling your divorce in mediation.

1. Bring a negative attitude and a closed mind to mediation. Come with the attitude that your case will never settle. Don’t listen to anything your lawyer tells you that differs from what you want. Be unwilling to listen to the information provided by the mediator, but instead expect the mediator to become your advocate. Remain inflexible and demonstrate loudly to everyone your unwillingness to compromise.

2. Go out of your way to aggravate your ex-spouse right before your day of mediation. Do not agree to anything. Do not show any compromises. Do not in any way endear yourself to your ex-spouse. Ensure that your ex-spouse is really angry with you so that even the most reasonable position you take in mediation is rejected.

3. Do not make full financial disclosure of your assets, debts and income. Don’t even bother gathering any such information to give to your lawyer before mediation. Insist that any settlement be made without proof of any of your figures. Do not accept the advice that you cannot settle your case at mediation without financial disclosure. Insist that it is a waste of time to make financial disclosure and it is only being asked of you to upset you and for no other reason.

As ridiculous as these three tips sound, spouses demonstrate these qualities every day in mediation. It is these very attitudes, actions and statements that prevent cases from settling in mediation. These types of behaviours are exactly what drives spouses to divorce trials. So before you dismiss these three tips as being utterly absurd and possibly sarcastic, inquire whether any of the sentiments have been felt by you or your spouse. If so, good luck at trial.

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