Part One: When your know-it-all ‘friend’ tells you about how mediation is a waste of time.
Art Aingel was surprised when his friend Draco DeVille invited him golfing at the country club. Art, of late, had been running around like a college kid, getting the letters “L-I-V-E” and “F-R-E-E” tattooed on his knuckles and spending most nights in his young girlfriend’s Highlands bungalow she shared with four roommates. With each week that passed after Draco’s wife filed for divorce, Draco seemed to be getting less mature, going backward in time like Benjamin Button.
“I hate this place,” Draco confided, once the two of them were alone in a club golf cart on the green. “But I am making darn sure to keep the membership so my soon-to-be-ex-wife Desdemona doesn’t get it.”
“That sounds mean,” Art muttered, Draco ignoring him.
“By the way, buddy, did you hear our estranged wives got thrown out of here last week?” Draco laughed, elbowing his friend.
Art admitted he did not know this information. Unlike Draco, Art did not hate the mother of his children. He knew that drinking was and always would be a struggle for him. She had enough. And he certainly could not picture Angela, a straight-laced school teacher, getting thrown out of anywhere.
Draco, meanwhile, loved gossiping about the exes. “They tried to sneak in for a round of tennis. Can you believe it?!” he gloated. “Luckily, I have a private investigator tracking Desdemona at all times. I made sure to get them turned in as soon as I got the word! I’m just disappointed I didn’t get them both arrested.”
“I cannot agree with you there,” Art said. “Angela has enough on her plate. She really does not need an arrest record and expensive criminal defense fees on top of everything else. If she was at the club, she probably had a reason.”
What Art was really thinking is that Desdemona had probably tricked Angela into coming to the club. In all their years of dating and marriage, the only time Angela ever did get in trouble, Desdemona was sure to be the instigator.
“Man, you need to grow some whiskers!” Draco slapped Art on the shoulder. “And I don’t mean like the girlie moustache on Desdemona’s upper lip that she keeps bleaching. Seriously, why do you keep giving Angela the benefit of the doubt? You need to man up and start fighting for your rights!”
Art ignored Draco and walked to the tee. He could not talk Draco into anything, but at least he could get some satisfaction by out-golfing him.
“MEED-EE-fricking-ATION!!!!” Draco shouted distractingly, interrupting Art’s swing. Art knew Draco did this on purpose, causing him to slice.
“What was that?” Art looked back at him.
“Mediation,” Draco spat out the word. “We both have to go to it, man. Can you believe that now we have to go to some sort of peacemaking session to see if we can AGREE on everything? Oh no, boy, not me. I am going to the mattresses on everything. I am going to tell my attorney not to bother scheduling mediation. What a waste of time! Settling is for wusses.”
“Well, Draco, I am not sure mediation is optional. My attorney said the judges expect us to go to it and to try to come to agreements.”
Part Two: When your ‘friend’ does not understand the concept “good faith.”
“Fine!” Draco snorted, “If that is how it is going to be and the judge makes us go to mediation, then I will just walk in and walk right back out! They can’t make me agree to a single flipping thing. I came, I saw, I’m out.”
Draco began pacing and pounding a fist into an open palm. “Make her pay!” he yelled. “Listen, if you get dragged into mediation, read my lips, N.O. Just keep saying it. Agree to nothing. Mediate that, brother!”
Art did not exactly know what mediation would be like, but he did know one thing: If Draco was dead set against it, it probably was a good idea.
His attorney said that the obligation was for GOOD FAITH participation in mediation. Walking in and walking out did not seem to qualify. You had to try.
Part Three: When your attorney explains mediation.
By coincidence, an email from Art’s own attorney was waiting in his inbox when he got back to his computer. She was seeking his feedback on three possible mediators, which she said she had handpicked as being a good match for a mediation session between Art and Angela.
Art researched each of them, calling them and selecting one that he thought Angela would hate, so he could get the upper hand. Angela is going to be intimidated by this guy, he explained to his attorney. She does not do well with hard-driving businessmen like him and would be a lot more comfortable with a woman.
Art’s attorney pointed out that Art might want to choose a mediator that would make Angela feel comfortable and gain her trust. “Remember,” the attorney cautioned, “neither of you are required to agree to anything. So a mediator Angela hates would be just one more obstacle preventing you two from reaching agreements. But if you DO reach agreements, you will have some control over your family, your finances and your future. Handing these important issues over to a person in a black robe who does not know you is not necessarily the best thing. Judges have very limited time and they must make decisions based on applying admissible evidence to the law as it stands.”
Art made it very clear to his attorney that he did not want to give in on everything. He wanted his day in court to explain that he was a good guy and fair and that Angela made the marriage very difficult with her overspending, that Angela’s mother had never liked him and that he had always put a lot of his paycheck toward savings whereas Angela liked to spend money on the kids and all their activities. He wanted to impress the jury with his side of the story so he could get a better result despite his struggles with drinking. He could get them to see his side.
Again, Art’s attorney pointed out that he was not “giving in.” They would make a strong case for dividing property the way Art suggested. They would have access to all the financial documents and would create a SPREADSHEET showing how everything should be divided. The mediation results could be based on a fair result with an EQUALIZATION PAYMENT to the party who ended up with less based on the division of assets and debt.
The attorney also pointed out that Colorado is a NO FAULT STATE. This meant that the judge generally would not consider or take evidence about whose fault it was to divorce and whether Art and Angela were “good people” (outside of narrow circumstances such as credibility, marital waste of assets and parenting issues).
She also explained that a divorce hearing is more like a BENCH TRIAL before a judge. There would NOT be a jury. And for good reason, because who would want the intimate details of marriage paraded before friends and family? Art agreed that he would not want this.
What really tipped the scales for Art, however, was the time, expense and hassle of dragging the case out to trial. Their PERMANENT ORDERS were set several months in the future. He wanted to get it over and done with and did not want to keep paying the attorney for this and that. She mentioned trial notebooks, subpoenas, legal briefs, expert witnesses and lots of expensive-sounding things Art did not want to foot the bill to pay, especially when he found out there was a chance he might have to pay Angela’s attorney fees too due to his higher salary.
Art was convinced. He dove in and did the best preparation he could for mediation. It was hard and not what he expected.
Again, his attorney assured him, Art did not have to agree to anything. He just had to consider it in GOOD FAITH. If Art did not like what Angela offered, he was free to decline the offer and counter with his own offer. If they did not agree at the end of the session, they could leave without agreeing.
However, the attorney stated, most participants agree on at least something in mediation.
Part Four: When your ‘friend’ refers you to an untrained, new age kumbaya mediator.
Draco had referred a couple mediators to Art, which Art found surprising because Draco was so dead set against mediation. He gave one a call and she immediately tried to talk Art into firing his attorney and encouraging Angela to do the same. She said attorneys are a waste of money and can get in the way, not to mention that a mediator can do everything they do at half the price. She said she focused on communication skills and letting the parties speak for themselves, using active listening and validation. If this did not work. then an agreement was not meant to be. No use in forcing the issue.
As tempting as this sounded, Art decided to give his attorney a shot at countering it before he even thought about firing her. With all the paperwork of divorce, he really could not imagine doing it himself.
Before calling his attorney, he asked the mediator for a résumé and referral. It was a red flag when she had neither. And when he asked how many mediations she had done, she said she was “just getting started” in this new career after being a life coach, chakra expert and spiritual guide. Art had doubts.
Art’s attorney immediately identified the mediator in question without Art even mentioning her name. She said that this mediator had a high school degree and a few months of “intuitive communication” classes at Naropa institute before calling herself a mediator and going to work. The attorney pointed out that anyone can be a mediator in Colorado because there is no regulation. She mentioned that an attorney can explain how much maintenance Art would have to pay and also whether a maintenance suggestion was a fair deal. MEDIATORS CANNOT GIVE LEGAL ADVICE. So Art could end up getting a settlement that was completely unfair under the law and the mediator could not explain why he could do better. Her only job would be to get to agreement.
Draco said, “Yep, she sounded like a dingbat,” when Art explained his troubles with the mediator.
“Then why did you refer her to me?!” Art demanded.
Draco shrugged and laughed. “I felt sorry for her when I fired her, not to mention I wanted to get my deposit back, so I promised to get her some referrals to my friends. And aren’t all the mediators the same anyway?”
“No,” Art replied in frustration. “This mediator is more of a therapist, and a new age one at that. If therapy and communication skills were going to work, we would not be getting a divorce in the first place. We do not need intuitive listening skills. We need to get this thing done, because I am sick and tired of the entire process.”
Part Five: When you show up at mediation.
Art and Angela ended up agreeing to use a mediation team with one woman and one man. Art really hated the idea of paying two mediators, but this team agreed to accept the OFFICE OF DISPUTE RESOLUTION (ODR) rate of $120 per hour total, which was comparably affordable. Art was not sure why two mediators wanted to mediate for the price of one. His attorney said the field is very competitive so mediators are often quite affordable or free, but at the end of the day, you want to use the best mediators who can get the job done.
On the day of mediation, Art was surprised to find out it was in a private office and not a courtroom. His attorney brought many documents but relied on Art to be the expert of his own finances.
The mediators gathered Angela, Art and both attorneys into the conference room. They said they needed to make some important points. The proceedings were CONFIDENTIAL and none of them were admissible in court. Mediation was confidential because this encouraged parties to be forthcoming and make offers without being held to them in court later.
The mediators reminded Art that if mediation went past a half day, he would still be expected to pay for the HOURLY RATE for any extra time. This meant that he would need to use his own credit card if they went past the minimum four hours. Art was glad his attorney reminded him of this so he was ready to pay. It would have been embarrassing if he showed up without his money or an ability to pay. Of course, Draco planned to do this on purpose: showing up without any money and hoping he could pressure Desdemona into paying for the whole thing. Just another of Draco’s bad ideas.
To guide discussions at mediation, Art’s attorney’s detailed SPREADSHEET spelled out what Art thought was a fair agreement. It listed assets and debts, separate and marital property, a fair division of each including an equalization payment. Art felt more comfortable when he realized most of this was simple math once you had the numbers on the table. It made sense to figure out what the Aingels owed in debt and owned in property in order to know how to divide it.
Art hoped Angela would stay calm enough to reach agreements. He was relieved when the mediators seemed to have a good rapport with both of them, listening to Art’s point of view before telling him what to do. Angela’s attorney had her own spreadsheet, which he did not like very much. It seemed to her advantage – taking a big chunk of his retirement and sticking him with a lot of the debt.
In fact he was so mad when he saw it that he wanted to walk out. His attorney reminded him that it was a NEGOTIATION and he was free to counter what he did not like. And maybe Angela would back down on a few things. Meanwhile, his attorney said it is not uncommon to get an outrageous initial offer. Stay calm, she urged. This is just their FIRST OFFER.
Part Six: When they put you in different rooms.
About this time, the mediators divided both parties into different rooms. Art and his attorney were in one of the mediator’s offices while Angela and her attorney stayed behind in the conference room.
Art’s attorney said this did not always happen but that it was very common. Each mediator has his or her own style. Some mediators called this part a CAUCUS. And it was not uncommon for all the parties to come back into the same room at the end.
Part Seven: When they spend more time in the other person’s room.
Art did not like it that the mediators seemed to spend a lot more time with Angela than with him. It was not fair. She was probably batting her eyes at them and getting them to feel sorry for her, he thought in frustration. Art’s attorney said that the opposite is usually true. Mediators often stay longer with the party who seems to be taking an unrealistic stance, trying to talk some reason into them so a fair agreement can be reached.
The mediators gave Art time to explain his side of things: everything from parenting time to finances.
Then, the mediators got down to business. They made sure the parties had accurate financial information and made Art make phone calls and pull up documents and account balances on his phone.
Part Eight: When you make your point to the mediators.
Art was adamant he did not want to pay MAINTENANCE, and certainly not the statutory amount. He explained that Angela could easily get a better job because she had taken online classes toward her master’s degree instead of working. He did not think it was fair that she could get some of his hard-earned money free and clear. Here all these years she got to run around with the children while he worked his butt off. She spent money like it was going out of style while he tried to build their savings. He had not had a new suit in years while she ran off to the mall to buy clothes for the kids and the latest styles for her, not to mention going out to lunch, manicures, and $200 for blonde highlights. Art was sure the judge would punish Angela for her indulgent ways by denying her maintenance and making her take less than half of the savings.
Everyone sat back and listened to Art’s story.
Art’s attorney kept redirecting him to the worksheets and spreadsheets, basing arguments on numbers and facts. Art was getting sick of it, frankly. Couldn’t she see that they kept nodding their heads and taking notes? Obviously they agreed with him, Art thought to himself.
“After all, Colorado is an EQUITABLE DISTRIBUTION state, right?” he heard himself raise his voice. “So that means fair and giving her maintenance is hardly fair!”
“I think you might want to speak more quietly,” the male mediator urged. The walls are only so thick.
Part Nine: When you are on the hot seat.
Art was proud of his speech about the stupidity of maintenance. He was sure he had the mediators convinced.
He was in for a surprise. Both mediators really pushed back. They pointed out what they had observed in court cases and directed him to the guidelines.
His own attorney also took him aside, out of the presence of the mediators. He wondered why she had not come to his defense, arguing all his points as she had on most issues. He asked her as much, expecting her to apologize and leap to his defense.
Instead, she surprised him by explaining that his points were not that strong. The odds were next to none that he would get refunds for money spent on clothes or get out of maintenance because his wife stayed home with the kids. Courts do not generally “fix” the issues of the marriage unless they are extreme. They are more likely to follow the MAINTENANCE GUIDELINES, apportion child support pursuant to the CHILD SUPPORT WORKSHEET and divide assets and debt evenly unless one party was independently rich.
Now Art realized what his attorney was talking about when she said it can be harder on the person where the mediators spend MORE time. Often it is because he is being unreasonable. Did the mediators think he was being unreasonable? How dare they?
It was like that scene in the movie “Animal House” with a devil on one shoulder and an angel on the other shoulder. Except on one shoulder was his attorney and on the other shoulder was Draco. The little, halo-wearing attorney on his right shoulder was saying to be reasonable look at the numbers and the best interests of the children. Meanwhile, the little devil-horned Draco on his left shoulder … well, he would be saying exactly what the devil said in the movie.
Part 10: When you get mad and want to walk out.
Earlier, Art felt like the mediators were on his side. Now they were acting like they were on her side. He felt attacked and mad.
Art’s attorney stepped outside into the hall with him. “Maybe take a breather,” she suggested. “We are really very close on almost everything. Is there anything that might calm you down?”
Art excused himself to walk down the hall and call a friend … and this time NOT Draco. He called his brother Arnie who had been divorced, also in Colorado. He told Arnie he wanted to go to trial because maintenance was so unfair. He was very hot under the collar. Strangely, Arnie had called him during Arnie’s divorce. He was trying to decide whether to fire his attorney and hire an expensive attorney who was known to be a hired gun and help people hide money. His brother had signed an agreement in mediation and the other attorney encouraged him to try to get it thrown out then go to trial. But Arnie was going to have to have to take a home equity loan to pay the retainer which was in the high five figures. Later, his brother confided that he was very relieved he did settle. In fact, the hired gun was later suspended from practice.
Art was pacing and felt a bit sick. Everyone was making him pay money. Divorce seemed a lot like having the wedding that got him into this mess in the first place. Everyone told you what to do, you just kept writing checks and you never know exactly why.
Arnie reminded Art that sometimes he could get worked up and stop listening. Art knew this was true. He asked if Art had made notes, knowing Art always took notes. Arnie said, “Do yourself a favor, bro. Go read your notes as if they were my divorce, not yours. Get some objectivity, man.”
When Art went back and read his notes, things started to pop out at him. In his anger, he had “forgotten” that he got a big tax deduction and paid less child support because of the maintenance. Also, he could go back to court and adjust maintenance once Angela started making more money at school. And he remembered that he did not have to pay back any Angela’s school loan under the agreement, his attorney pointing out that the classes failed to increase her income because she never finished her thesis or the degree. But the main note was the reminder that his attorney fees were adding up and their court date was not for weeks. He wanted to be DONE!
Part 11: When the other person is in the hot seat.
Having realized that being in the “hot seat” in mediation is not so fun, Art was relieved when they took his latest offer to Angela. If the mediators were in the other room, it could be because they were talking sense into the other person. And, sure enough, they spent a loooong time with Angela next.
When they came back, the mediators had good news. Angela had come down from some of her positions. Art could tell the mediators and probably her own attorney had talked her out of her argument that she could be a stay-at-home mom living off permanent maintenance for the rest of her life. They probably talked her out of the argument that the judge would not make her work once the judge heard that Art had a DUI. Art had complied with diversion and had been sober for 89 days and counting. He had paid his dues and held a good job. In a no-fault state, this would have nothing to do with maintenance and child support for the most part.
He was shocked to look out the window and see Angela pacing the sidewalk, washing down a bag of M&Ms with a regular Coke, not a diet one. She had taken a stand against sugar years ago, forcing the children and him to eat things like aspartame, agave and stevia.
The hot seat had clearly stressed her out too. For a moment he felt comradery with her. Then she saw him looking at her through window and glared back defiantly. With that nasty look, Angela’s unrelenting bitterness throughout the last years of their marriage instantly flooded him, tasting a lot like a mouthful of stevia.
Part 12: When you sign the Memorandum of Understanding.
The mediators called the parties into the same room. They had prepared a MEMORANDUM OF UNDERSTANDING (MOU) for both to sign.
The MOU was an outline of the main issues. His attorney said it can be better to get something in writing because if you get too “down in the weeds” with details, you miss the opportunity to agree. She also mentioned that if the parties failed to agree on details, the signed MOU was court-admissible and usually sufficient as a basis for the divorce. Art liked the sound of that. No chance of backing out and they would SOON be DONE!
Art’s attorney and he read through the MOU line by line. There were typos and things to fix. It seemed to go on forever. In his mind, Art kept calculating the price of each attorney plus $120 per hour for the two mediators. Mediation was costing a fortune. He hated that part.
Art liked a lot about the MOU. Now, not everything. His attorney said the mark of a good settlement is that both parties feel like they compromised. It may not feel good, but it is usually better than a trial as you can contribute more detail and come up with agreeable terms that are acceptable if not delightful.
Art felt a very psyched as he walked out of the office building where mediation took place and loaded his laptop and documents into the car. He kept reminding himself, even if the parties fail to agree on details, the MOU was enough to push through the divorce without more delays or an expensive contested permanent orders hearing.
The divorce, thanks to mediation, was ALMOST DONE! All that were left were a separation agreement and parenting plan to finalize.
Meanwhile, Angela also felt elated to be so close to finality. She called her friend Desdemona to share the good news. “All we have left is to finalize the separation agreement and parenting plan.”
“Well, good luck with that,” Desdemona replied coolly. “Draco and I had mediation and then everything fell apart drafting the separation agreement. We fought over every detail. That is why we are going to hearing and I cannot even begin tell you the pain and anxiety it is causing me. I am getting my hair touched up right now because you would not believe the grays. And don’t get me started on the ones falling out over this all stress!”
“I’m sorry, Des. But for us, no worries about having to do a hearing,” Angela answered. “We have an MOU which means even if we cannot agree on the details, we have enough for a divorce. We’re done!”
“Goodie for you,” Desdemona said sarcastically. “I just heard that we are not going to hearing until the end of the year. One thing after the next with this divorce from hell. Next thing my toenails will be popping off too. Hmm, I should probably get a preventative mani/pedi just to be sure. See, the hardships never stop!”
Angela tried a bit to console her friend, but that did not deter her own good feelings. All the hard work digging up financial documents, preparing spreadsheets and trying hard to find fair compromises had paid off. She was on the home stretch now.
Questions for October: What’s the plan, man? How do you negotiate and draft a separation agreement and parenting plan? Why bother if an MOU suffices? What happens if you get cold feet?
If you need help getting through all the steps of your own divorce, contact Andersen Law PC today. Email beth@andersenlawpc.com or call 720-922-3880.
