The success of your mediation is highly dependent on how cooperative you and your spouse will be in mediation and the quality of the process itself. Not all processes are made the same. Not every mediation process will allow you to arrive a mental clarity to arrive at an informed decision about your future financial life. Before you decide to go through mediation, you may want to ask yourself how your spouse will act in a mediated environment? Will your spouse have an emotional blow up? Can you trust your spouse’s thinking process? Will your spouse try to be manipulative in any way? Will you find yourself being controlled in what is supposed to be a more neutral setting when you do not want to be controlled? The objective of the mediator is to “get to Yes”. The mediator has limited, to no, visibility to the true financial outcomes you will experience after your mediation sessions are over. So, if you have financial issues that you need to address in your mediation, you must be careful how you approach this process. You may find that you end up with a situation you didn’t expect. You may also discover you are unclear about what just happened. If this is what you sense then it may be wise to not agree with the options placed on the table. There are better alternatives than those presented. Some more critical thinking has to take place to resolve your concerns.
Evaluate a mediator’s process before choosing the mediator
Before you choose mediation, it is critically important to evaluate the skills of the mediator. Most people get a recommendation and go with it. You hear about people’s popular reputation in the marketplace. But is that the right criteria to choose a mediator? Are professionals simply feeding business to each other? Do you wonder about the process a mediator will employ? You should. Process is absolutely critical. If they can’t explain their process then you may want to look in another direction to resolve your situation. If you don’t you could surprisingly end up in a worse situation than you ever expected.
Most mediators are lawyers by training, not financial professionals
Most mediators are attorneys who became mediators. Some chose this profession as they didn’t want to be involved in litigations. Either way, they are trained in the legal aspects of divorce. They know the law. They will read you your legal rights to set the groundwork. It is good to know your legal rights. They are not trained as financial experts. They just do not sharpen that saw every day. Unfortunately, in context to a mediation, a mediator trained in legal matters often focuses on finding ways for each side to yield and make concessions with no clarity how each of the pieces truly go together and the impact on each divorcing party’s future financial life. The goal of the legal mediator is to have the parties get to “Yes”.
FYI – mediators are not financial architects
Mediators are not trained in financial analysis or how to design a financial architecture that works for both you and your spouse. CPAs and CDFAs are not financial analysts or financial architects. Financial analyst and financial architecture expertise are the most valuable skills you will need on your team to arrive at a successful financial outcome in a mediation. Without them you will likely find yourself wondering how you ended up in a less than desirable financial position after everything is said and done. You need someone to help you work through the details of your financial life and figure out how to arrive at the best solution possible for you and your spouse. What you do not need is someone to figure out how to negotiate with you simply to close up your mediation and make you feel like you “checked the box” (went through the mediation as a matter of course) but didn’t arrive at the financial outcomes that make sense for your future financial life. Most people do not realize these issues are happening to them in the moment. They experience it months or years later.
Your situation may sound simple on the surface which may drive you to a mediation, the reality is there are usually different financial layers working together that need to be properly positioned to arrive at a desirable financial outcome.
Financial negotiations is an important (yet unique) skill for mediations
Many times mediators use pressure tactics to have people make certain financial and non-financial decisions without having clarity around the financial implications of the decision. That process may work for the mediator, but it simply does not work for the divorcing parties. I would not want that done to me and you should not want that done to you either.
Financial negotiation is a skill set too. When executed properly the financial negotiator (key word is financial as you will need someone skilled in financial matters) understands the entire financial picture. Skilled financial mediators understand in the moment how each decision influences other aspects of your future financial life. These financial components are sensitive. Literally one wrong financial decision can transform a person’s financial life for the worse. That’s why you have to know that you have the right skills helping you through your financial mediation process. Furthermore, it is not about bringing in a financial expert at certain points in time. Most of the discussion has financial implications. So, you need to work with the right skills throughout the process.
If you have legal issues, then definitely utilize a mediator skilled in legal matters. If you have psychological challenges, then utilize a mediator who has the psychological frameworks to help you maneuver those issues. If you have financial issues, then select someone who has a detailed understanding of the financial components and has financial frameworks specifically for divorce to arrive at your desired financial outcome from your mediation. Financial mediation is about designing a solution that works for you, not about arriving at Yes to check the box that you went through “mediation”.
Mediation should not be about push and shove until someone calls Uncle
It should not be about exhausting the parties until they are forced to make a less than desirable decision. Most people want to simply understand the financial ramifications of their decisions. Each decision builds on the next and can have dire ramifications. Divorce parties want to pre-experience the financial outcomes so they know what their risk-reward trade-offs will be today and in the future. Financial matters represent over 95% of the issues in divorce. With financial clarity in hand the mediation process goes a lot smoother and you end up with a much happier outcome too.
Mediation is not always about meeting in the middle
Most mediators approach mediation not as a process to arrive at a “fair and equitable” outcome for you or your spouse. They approach their role to simply get things closed up and move forward. If you do not have someone who pays close attention to the financial details then you will end up in hot water before you even start the mediation process. You will live with the financial consequences after the fact which likely goes against the original reason why you went to mediation in the first place. High quality process focused on your financial issues is the key.
You should obtain financial clarity from your mediation process
Before going into a mediation session you will want to make sure you present your situation clearly. If you do not provide your mediator with the details in a clear and organized fashion, then the mediator has less to work with for your situation. If the mediator has less to work with then your financial outcomes will automatically be compromised. This assumes you are not using a financial mediator in the process. If you arrive at the table with a financial mediator and you do not have your ducks in a row to the extent you should (i.e. you don’t know what you don’t know), your financial mediator will ask you a lot of questions to fill in the blanks. This process of filling in the blanks is very valuable to you and for the financial mediator. The objective is to start with what we call your “tradable components”. These are the financial components that you will be trading between you and your spouse. Without clarity around your tradable components you will end up with a much less granular outcome and assume a lot of unknown risk. If you have not clearly defined your tradable components, then you can not truly enter a financial mediation process. Understanding your tradable components is essential to have a successful mediation process.
If your mediator does not have your tradable components in hand or does not know how to define your tradable components she or he will use what they do have in hand. In the end, this will only hurt you financially speaking. They will look at the evidence that you present and move towards what they view as the only financial solution available. In a financial mediation, the financial details matter. Being organized is very important too. Organization in this context is not only about having a clear table of contents that someone can walk through it also means you have properly defined the right issues that need to be discussed in your mediation. If you don’t know what you don’t know (which is all of us unfortunately) then you may appear very organized but your financial content is lacking critical pieces that never get discussed during your mediation. We have over 1,000 line items that we have accumulated over time. No single person would ever fill the 1,000 line items. However these line items function as our checklist to make sure we bring forth the right issues for the situation. Simple situations are usually anywhere between 30-50 tradable components. More complex situation can go much higher in terms of tradable components. If you leave 1 tradable component off of the table you either allow your spouse to enjoy certain benefits you will never know about or both spouses could limit their ability to capture future wealth.
Money hides in both your history and in your future. Both need to be evaluated to arrive at the right financial outcome
If you choose to go down the mediation path, evaluate all of the dimensions of your divorce such as tax implications, future education costs, retirement issues, future inheritance, future medical costs, insurance, among many other issues that can and do impact the outcome of a divorce. Unfortunately a person’s financial life is all tied together from many different pieces of the puzzle. Money hides in many places. Yet what is not always clear is money does not only hide in history, money also hides in your future where you will experience financial flexibility or financial constraints.
These issues need to be clearly defined ahead of time. Otherwise, your mediator will have no idea of the issues that are “off the table” that should be “on the table” for discussion. Life has a funny way of working for all of us. If you don’t address something while you are going through the process you will likely experience it later in life. It remains a thorn in your side that you try to get rid of. Unfortunately, you pay for it one way or the other. You either experience a high quality process to avoid these issues or a lower quality process where you end up experiencing risk with a solution that was not the right fit for your situation. It is usually best to address everything early and often so it doesn’t come back to hurt you later on (financially or emotionally).
What happens when you don’t do the financial analysis up front?
You need to uncover all of your financial issues. Why? Uncovering your financial issues helps you put more issues on the table to “trade” against other issues. Mediation is about a “trading process”. Yet, if you do not know what to trade then you are left agreeing to something without a comparable offset. Without clearly identifying and understanding all of your financial issues past, present and future you cannot negotiate with clarity on your future outcomes.
Some key takeaways
- Evaluate the mediator’s skills. Are they legal, psychological or financial. Which type of skills do you need for your process?
- Understand the mediator’s process. How will the mediator address intricate financial issues that may exist in your situation? If they do not know how to address them before you get into your mediation they will not know how to address them during your mediation either.
- Ask the mediator how they addresses profiles like yours. Find out whether there is a clear attention to detail. How do they peel back the onion to get to the heart of the matter? How do they manage conflict in real time? What are their tactics?
- Focus on having well defined tradable components for your mediation process.
About the Author
Larry Smith is a Founding Partner of Divorce Outcomes, a specialized professional services firm that manages all of the financial aspects in a divorce process. Since 2003 he has worked as a trusted financial advisor, financial advocate, divorce architect and technical financial expert; he is not an attorney. He is an alumni of KPMG and Andersen with expertise in technical accounting, forensics, sophisticated taxation, management consulting, risk management, advanced process engineering, business combinations, divorce management, multi-party negotiations, advanced quality analytics and cognitive performance technologies. Since 1986 Larry has been advising individuals and organizations about innovative financial solutions to resolve complex financial challenges that arise in life and in business.
For both personal and business divorces, Larry is considered an expert in divorce strategies, divorce process management, financial divorce architecture, financial risk management, taxation for divorces, financial divorce forensics, advanced divorce analytics, financial divorce negotiations and mediation, business valuations and sophisticated equity structures. He helps clients shape complex financial decisions, manage communication risks and ever-changing negotiating positions to strategically preserve or grow wealth from these types of transactions.
If You Have a Question
If you have a question, feel free to contact me at [email protected] or 617-680-5222. The call is free. I will spend 30–60 minutes with you. I will provide you an honest assessment as to where I think you are positioned in your divorce process or answer any questions you have. I may provide you some guidance, insight or advice that you can take with you as you wish. There is no obligation to move forward. The phone call is designed to ease your fears, provide you some options to pursue and a potential road to run on that can lead you down a path to achieve a successful outcome.
About Divorce Outcomes
Divorce Outcomes is a specialty services firm that helps people both domestically and internationally manage all of the financial decisions that arise in their divorce process. We are not attorneys. We are financial experts who partner with our clients as their personal financial advocates. We help our clients manage their divorce process, uncover hidden financial risks, architect divorce solutions, manage ever-changing negotiating positions, communicate complex financial matters and close the divorce process as soon as possible with a goal to arrive at the best outcomes possible. Throughout the process we evaluate the current state of our clients’ financial lives with an objective to best reposition their future. We do not sell any products. We simply raise issues that are in our clients best interest. Our clients share with us we:
- unfold, analyze and repackage their financial life so they are well positioned after their divorce
- preserve the value of their business or marital estate
- continuously strive to provide a return on our services
- build balanced financial solutions grounded in evidence
- find ways to make our client, and at times both parties, money through the process
- design their divorce to work for them and their family’s life
- provide mental clarity to make decisions
- reduce the total process time from start to close
- minimize the stress and unpleasant memories that can last a lifetime
As we reach an agreed upon settlement structure, we help our clients identify a fitting attorney who can leverage the financial solution to draft and record the requisite legal documents. Where outcomes are at risk from a traditional process, we function as expert financial negotiators or financial mediators to turn around the situation and achieve our client’s desired outcomes.
This communication is for general informational purposes only which may or may not reflect the most current developments. It is not intended to constitute formal advice or a recommended course of action as every person’s situation is unique and different. The information here is not intended to be, and should not be, relied upon by the recipient to make a decision without professional guidance.