One of the questions I’m most often asked is whether a party will get less in mediation than they would get in court. If mediation is about compromise, doesn’t compromise mean you get less? The answer is a resounding “No.” You can always get just as much in mediation than you could get by going to Court.
First, know what to ask for and be prepared. You should go into mediation knowing what your assets and liabilities are the values and balances of both. This will enable you to trade certain assets for others, rather than simply dividing everything in two. Sometimes, it is more important for a party to keep the house, in order to keep the children in their current school district. In other instances, a party really needs more retirement. Don’t get caught up in trying to punish your spouse. Look at what you need to protect yourself in the long term.
Next, identify what you want more than anything else. In Court, the judge will sell almost everything and equally divide the proceeds. If you want to keep the house, you need to give your spouse one-half of the equity in the house. This means you will need to borrow enough. to pay your spouse that amount of money. Alternatively, your spouse may agree to be paid from another source, such as retirement. The equity in the house should equal the value of the retirement.
What if both you and your spouse want the house? What is it worth to you to get to keep the house? Is it worth giving your spouse an extra $10,000? What about $50,000? It depends on how much you want the house. If you know the judge is going to sell the house, isn’t it worth some sum of money to keep it? Focus on the true value of keeping the house (your dream home, the children’s school district, the convenience of the commute). Not all things are valued in terms of dollars and cents.
Mediation is a process of cost-benefit analysis. Honestly, many if not most items in a divorce, are not defined by dollars and cents. There is peace of mind, getting the divorce finalized quickly, keeping your children out of it, not having to face your spouse in court, etc. What is the value of those intangibles? Knowing the values of the tangibles AND the intangibles is invaluable to the divorce process. Once you know the values, you can trade those tangibles and intangibles for other things. Might you be willing to give up permanent spousal support for the prospect of getting divorced in a month? Balance the cost of the spousal support with what you saving in attorneys fees, less heartache, time off work, and time away from your children. These are really hard choices, but knowing the benefit of what you would be gaining and the cost of what you may be losing is invaluable.
A good attorney or a good mediator can help you navigate these issues and help you assess the value of both the tangibles and the intangibles in your marriage which helps you make the proper choices in your divorce settlement.