How can we resolve sticking points in divorce mediation, collaborative divorces or settlement negotiations?

Divorce mediation, collaborative divorces and settlements in divorce litigations on Long Island, New York City and the rest of New York operate in the shadow of the law.  What this means is that the law exists in the background but does not have to control the resolution of that particular case.  The reason is these settlements are structured and agreed upon by the divorcing couple with the help of a mediator and/or attorneys.  A judge is confined to decide cases according to the law which might not be particular to the needs of each family.  My experience as a Long Island Divorce Mediation Lawyer, and litigator tells me that a divorce that is decided by a Judge after trial is almost invariably the most expensive route.  An essential element of a settlement or agreement whether it comes from a divorce mediation, collaborative divorce, or a settlement from an uncontested or litigated divorce is that the parties both agree to the terms.  This means that somehow people were able to get past the sticking points.

How do we get past the sticking points?  There is no magic formula or one size fits all approach, unfortunately, but different methods work for different people that have different fact patterns to their life situations.  The key is the willingness to try different methods to resolve the differences.  My experience tells me that people that choose divorce mediation or a collaborative law approach are the most willing to utilize different techniques to get past the sticking points.  Lawyers and clients  negotiating a case outside of divorce mediation or collaborative law may use creative settlement techniques as well.

I am writing this blog entry as a brainstorm of different ideas and techniques that I might use or anyone could use to get past the sticking points to settle their divorces no matter the method used.  The suggestions are not in any particular order and are by no means an exhaustive list.

As a mediator that is also a divorce attorney, when dealing with a mediation couple that is stuck on a particular issue, I might offer to inform the parties of the results I have seen in my litigated cases for similar issues.  Sometimes the answer is a range of possible outcomes which might provide different solutions.  Other times there are more concrete answers.  Usually, I will only share these views if both parties want this information from me.  If one side wants this information from me as a mediator, and the other does not then I will most likely try a different method to solve the problem since I am not there, in that instance, to offer legal advice.  Mediating couples are encouraged to seek the advice and counsel of their own review attorneys or consultation attorneys while going through the process or to go over a settlement agreement.  Whether the information comes from your mediator or your own attorney the point is receiving education on a topic.

Knowledge is power, as the saying goes, which can be true in divorce settlements as well.  Educating oneself about topics can be helpful to resolve an issue.  Sometimes, for example, consulting with a financial neutral, parenting specialist, tax professional or accountant, or other expert can help break the deadlock on an issue.  People are free to consult with their own experts.  In a collaborative divorce or a mediation, these neutrals are often included as part of the team to help get past the sticking points.  Knowledge about the child support guidelines, temporary maintenance guidelines, and considerations enumerated in statutes might help people come up with solutions.

Sometimes putting lists on a board in front of everyone is useful.  The list could be of trade offs, assets, liabilities or suggestions.  Having things in big print in front of all the players can help everyone to see things more clearly.  Whether compromises are identified, or the problem is memorialized to make the issue clear for future reflection, the big writing is an idea.

If an issue is identified, and a resolution not readily apparent, sometimes moving on to other issues and returning to revisit the matter at a later time might do the trick.  Solutions might be more apparent after working out another issue.  Taking a break and coming back refreshed might work.  The break might be to leave the issue alone until a further session.  The resolution of one issue might solve the other problem.  Our subconscious minds seem to keep working on problems even when we have stopped consciously dealing with the matter.

Full disclosure and exchange of information can be helpful.  Working out budgets and projection of the post divorce family in the future could help.  The state of affairs today most likely will not be that in the future.  Compromises can be worked out that allow for modifications to take place upon changes in circumstances.

Mediators and collaborative divorce professionals can make sure they understand someone’s point and that everyone else does as well.  Pointing out unrealistic expectations, steering away from counter-productive dialogue, and focusing on the best interests of the children, as opposed to one’s own can help break log jams.  In some cases, simply giving each side sufficient time to be heard could make a difference.

Patience, perseverance, creativity, and diligence are all important traits in problem solving.  People interested in collaborative law or individual representation by an attorney are welcome to contact my office for a free initial consultation.  Couples contemplating divorce mediation are invited to come into my Nassau County office for a half hour no fee consultation.  It would be my pleasure to speak with and work with you.

Please click on other blog entries and pages on my website to learn more about the different routes available and subject matters.


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