I tried and failed with mediation - what next?

[How to communicate after a contentious divorce...]

I've tried to get my BPDH to go to mediation to avoid going to court to ask for financial disclosure. In the Uk you have to at least try mediation before taking that step. This is the email response I had from him:

"A mediation and collaborative lawyer has been in touch about mediation sessions.

I talked to her on the 'phone and we decided that your behaviour needs to change before we can even consider approaching mediation in an amicable manner. I am concerned that you will use mediation as yet another route to abuse me.

My solicitor also considers that mediation is not necessary, so am I not convinced that we need to go through this process"

I keep reading these words 'your behaviour needs to change'.  Is there any point in replying to this? Or shall I just ask my sol to press ahead with a court application? I feel shell shocked and just don't know what to think.

[toomanytears]

I've tried to get my BPDH to go to mediation to avoid going to court to ask for financial disclosure. In the Uk you have to at least try mediation before taking that step. This is the email response I had from him:

"A mediation and collaborative lawyer has been in touch about mediation sessions.

I talked to her on the 'phone and we decided that your behaviour needs to change before we can even consider approaching mediation in an amicable manner. I am concerned that you will use mediation as yet another route to abuse me.

My solicitor also considers that mediation is not necessary, so am I not convinced that we need to go through this process"

I keep reading these words 'your behaviour needs to change'.  Is there any point in replying to this? Or shall I just ask my sol to press ahead with a court application? I feel shell shocked and just don't know what to think.

[Matt]

What is your goal - to save the marriage or to end it?

[toomanytears]

End it.

[livednlearned]

I talked to her on the 'phone and we decided that your behaviour needs to change

It's highly unlikely that a conversation with a professional went down like this, where this was the conclusion. A mediator's job is to be neutral, to not take sides.

This is just BPD talking.

If you want to move ahead with the divorce, then contact your L and push ahead for court. No need to respond to the particulars of the email, just the substance: "Based on your email, I will contact my solicitor and let him know that we will forego mediation."

[Matt]

Doocument that you proposed mediation and he said no.

[toomanytears]

Thanks all. You've given me the confidence to take the next step. I don't want court and I've tried to avoid it but I must move on now for my own sanity. 

[Matt]

It may still be possible to settle the case without a trial, by proceeding as if you will go to trial - preparing to get the outcome you believe will be best - and at some point the other side may see what is happening and offer a proposal.

Most of us settle without a trial, and that saves money and stress.

The best way to get a good settlement is to prepare very well for a trial.

[david]

Matt is correct. However, during the entire process realize you will be blamed for everything. If you don't let it bother you and just move forward things will get done.

[ForeverDad]

It is good that you attempted mediation even though you weren't too surprised that your efforts failed.  Most courts encourage and many even require that mediation be the first step after temporary orders are set.  Mediation works with the majority of cases but of course the acting-out PDs (the minority of cases) are unlikely to negotiate in even minimal good faith.

This is not to say a settlement isn't ever reached, often it is, but first the pwBPD is too entitled at the start of the case.  A settlement might happen just before a big hearing or just before a scheduled trial.  In my case, my ex had a favorable temporary order and so she delayed the final decree for nearly two years with continuances, obstructions and simple non-responses.  Over two years after we separated, court finally completed every single item on it's checklist except for trial.  I arrived at court on Trial Morning and was greeted with the news that finally now she was ready to settle.

The point is that the our typical ex-spouses probably won't settle on decent terms until they have to settle, usually just before a big hearing or trial.

[Nope]

I'm in the U.S. but some things are universal. Get a court date scheduled for as soon as possible because it is highly likely that the court's first step will be to insist that you both attend mediation. Your STBex is even likely to show up complaining that a court solution is premature since there has been no mediation (regardless of what that email clearly says).

[Matt]

I'm in the U.S. but some things are universal. Get a court date scheduled for as soon as possible because it is highly likely that the court's first step will be to insist that you both attend mediation. Your STBex is even likely to show up complaining that a court solution is premature since there has been no mediation (regardless of what that email clearly says).

Yeah, this was my experience too:  the one thing you can do, that will bring the process to a close as soon as possible, is to get a trial date set.

The court may not be willing to do that yet;  there may be more hoops to jump through.  Your solicitor should know when is the first chance to get the trial date set.  Then once it's set, don't agree to any delays;  tell your solicitor that she should not agree to any delays without your approval.  In the US, attorneys often agree to delays as a courtesy to each other, and that means both their clients pay more and are stuck in limbo longer.

[toomanytears]

Thanks for all your experiences and insights. Yes I can imagine any of these things happening. I'll instruct my solicitor to move the application forward fast. I think he's surprised by the delays - especially considering my BPDH wanted to divorce me. He is pretty on the ball and as a part time judge knows the system very well. Nonetheless I have to cover all bases.

It may still be possible to settle the case without a trial, by proceeding as if you will go to trial - preparing to get the outcome you believe will be best - and at some point the other side may see what is happening and offer a proposal.

Most of us settle without a trial, and that saves money and stress.

The best way to get a good settlement is to prepare very well for a trial.

What kind of preparation should we make in addition to the financial disclosure?  Luckily my kids are both in their early 20s but I would like to ensure he leaves his portion of our house to them and not his new partner. 

[Matt]

So it sounds like there are no custody issues.  It's all about money and other assets.

The way it works here, there is a "discovery" phase, where both sides can ask the other side for information, and that information has to be provided.  Stuff like financial records.  I didn't have much of anything, but you can probably print out bank records online, and insurance information, car loans, mortgage, etc.

Then somebody may have to make a list of other assets - TVs, appliances, etc. - and estimate what they are worth.

Here, you're expected to split 50/50 whatever was accumulated during the marriage.  Stuff you brought into the marriage you keep.  Same with debts.  So there is a lot of "discovery" - getting all the information out into the open.  Then math.  Then somebody proposes a settlement which is approximately 50/50.

Sometimes both parties want to keep the house, or maybe neither.  Maybe one party has to pay the other half the equity in order to keep the house.

All this needs to be worked out, and if possible it's best to settle it by agreement, to save the cost of the trial.  If the other party won't agree to what you think is reasonable, then you might need to go to trial, and present all the information along with your proposal, and show why you think it's fair.  The other side can do the same, and the court decides.

If you are afraid to go to trial, you'll take a settlement you don't really think is fair.  But if you are prepared with all the information, and good math, and a fair settlement, you don't need to be afraid of a trial.  It may even be possible to get the court to order the other side to pay your legal costs, if they haven't bargained in good faith.

Ask your solicitor how it works there - the details of the process - and work with her to form a good strategy.

[JohnLove]

I agree wholeheartedly with Matt. Although getting a good solicitor to form a good strategy was harder than it sounds for me. I found a good solicitor (had been to many) but found his strategy a little lacking. I found solicitors often place very little in preparation and often take instructions and wing it in court. Don't get me wrong. I achieved a good outcome but it was incredibly expensive and harder on the children than I would have liked. I had some difficulty with this approach with the most precious things in my life (I dont mean the ex  )

She even took some of our children to actual Court?... .who does that?... .my solicitor went bonkers when he discovered that. I think she was playing the look at me/poor me card?.

[Matt]

I found solicitors often place very little in preparation and often take instructions and wing it in court.

My first lawyer did this - no preparation - "I know what I'm doing." - and winged it.  (Or is it "wung it?"

Got bad results.

My second lawyer really knew what she was doing, and prepared well, and got better results.

[toomanytears]

I found solicitors often place very little in preparation and often take instructions and wing it in court.

My first lawyer did this - no preparation - "I know what I'm doing." - and winged it.  (Or is it "wung it?"

Got bad results.

My second lawyer really knew what she was doing, and prepared well, and got better results.

Great advice about getting the sol to prepare well. Mine is pretty thorough. A bit old school and rarely goes in for pleasantries but straight as a die and very courteous, which I like.

On the other hand, my BPDh's lawyer seems a bit flaky. He uses words like 'unconscionable' (to describe me) which are not exactly helpful... .I think they are just to validate my BPDh's perception.

Meanwhile my BPDh hasn't filed tax returns for two years, hasn't had his pensions valued, etc etc.  However given a deadline like a court date he can pull the stops out.

I'm so glad the kids are grown up - God knows what sort of blood bath it would have been if we'd had to battle over custody.

JohnLove - fancy your ex taking your own kids to court?

She even took some of our children to actual Court?... .who does that?... .my solicitor went bonkers when he discovered that. I think she was playing the look at me/poor me card?.

Talk about unconscionable... .but then, it's all about them isn't it?