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  • Writer's pictureBrian R Boney

Creativity in mediation is key

Updated: May 26, 2023

Finding that elusive win-win solution requires thinking outside the box.

If you’ve got a live family law case, it’s a pretty sure thing you’ve got a mediation order requiring you and the other party to make a good-faith attempt to settle most or all of your disputed issues. Regardless of whether you’ve got a good mediator, mediation is your opportunity, and that of the opposing party, to find a creative solution to your dispute. The trick is to find a way both of you can “win.” Today’s mediation successfully concluded is a perfect example.

Mediation occurs when parties with a dispute hire a third party, usually a lawyer experienced in the subject matter and trained in helping parties resolve their disputes, to try come up with a solution short of going to court. A mediator can’t force anyone to do anything, but a good mediator can steer the parties to where their own self interests may align. The benefit here is the parties can maintain control over the process and “use a scalpel” to settle their disputes where a judge will more likely “swing a cleaver.” Creativity is the key here.

Jen and Eric had a rough marriage that ended in divorce early in 2022. There was plenty enough acrimony, hurt feelings and blame to last the rest of their lives. And when it came to parenting their children, the same problems they had during their marriage spilled over into co-parenting their teen aged kids. Adding to Jen and Eric’s problems was a dispute over $23,000 in Iegal fees Jen (my client) wanted Eric to pay her because his actions had created a lot of extra legal work, fees she couldn’t afford to pay on her own. The judge had ordered the two to mediation to try to work out the attorney-fee issue.

However, we were stuck a greater distance apart from resolving the case when Jen proposed a payment plan for the total sum and Eric countered with a paltry $2000 offer. It was at this point that I had an idea that came to me from their divorce hearing. In dividing their property, the judge had awarded Eric a small house that Eric really didn’t want. His interest was to be rid of it so he wouldn’t have to pay future taxes on it. However, Jen has lots of inside knowledge of the local real estate market. She is sure she can sell the property for a tidy profit, if only the judge had awarded it to her.

Herein lies the creative solution: Jen will pay off the small mortgage in a couple of months, thereby removing Eric from any financial liability for the property. He will then title it over to her so she can sell it. He’s out from under a property he never wanted AND off the hook for possibly $23,000 in legal fees. Jen’s taking a risk in not being able to pay off the mortgage, but if she can, she’s got a good chance of flipping the property, paying off all her legal fees AND making a tidy profit from the whole deal.

This is the win-win.

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