Effectively
Preparing for Mediation
July
13, 2012
Nearly all
contested divorces go to mediation.
Sometimes the parties volunteer to attend mediation very early in the
process. Other times they do not attend
mediation until a judge orders them to do so.
Either way, one can safely assume that a contested divorce or domestic matter
will involve mediation at one point or another.
This is a good thing. Mediation
is a very successful process as 70% to 80% of cases that go to mediation
settle.
Mediation is a
very informal process. It gives a lot of flexibility to everyone involved and,
unlike court hearings, are not bound by complex rules of procedure. However, because mediation is so informal,
many parties and sometimes even attorneys do not prepare for mediation as well
as they should. While one should not
prepare for mediation as thoroughly as one prepares for trial, taking a handful
of basic actions can make the difference in whether a case settles. With that in mind, below are some tips on how
to effectively prepare for your mediation session.
·
Have
all documentation ready. Too often
mediation stops because one side wants to review documentation relevant to some
issue of contention and the other side did not bring the documents with them. This often arises in child support disputes,
allocation of marital debts, or dividing family owned businesses. If you think child support should be
increased or decreased because you pay for day-care, then bring documentation
that shows how much day-care costs. As a
general rule, when in doubt, bring it with you and bring an extra copy.
·
Have the mediator’s payment ready. Most mediators charge per hour and most
require that payment is made at the conclusion of the session. Good mediators put a lot of effort into their
cases and the fair thing to do is compensate them for their time. Also, most if not all mediation contracts
specify that payment is due at the end of the session. Failure to pay could get you in trouble with
the judge.
·
Allot
plenty of time to mediate. Most mediations take three to six hours. A few can be completed within one hour, and
on occasion some mediations can last all day.
It is important to allot plenty of time out of your schedule for
mediation. You do not want to miss an
opportunity to resolve your case because of a time constraint. If you are bound by a time constraint that
you cannot avoid, inform the mediator and the other side prior to or at the
beginning of the session so that accommodations can be made.
·
Discuss
the mediation process with your attorney.
Unfortunately, many attorneys do not prepare their clients for mediation
very well. Informing a client that
mediation “is a process where we try to settle the case” is accurate, but
insufficient to really prepare the client.
As the client, it may be necessary to use detailed questions to prod
your attorney for more information. Find
out your attorney’s experience with mediation. What is his or her general
attitude towards mediation? How does he or she prefer to approach mediation?
Will the attorney speak for you or are you expected to do the bulk of the
speaking yourself? Has he or she worked
with this mediator before? If so, how did those cases go?
·
Know
what you can and cannot agree to. In
positive, forward moving mediations the parties want to reach a resolution.
They want the case settled. How they get there is the problem and that is where
a good mediator can make all of the difference.
However, no matter how much you would really like your case to settle,
it is extremely important that you know and understand what you can and cannot
agree to. You need to know what will and
will not work. For example, agreeing to
pay $1,500 per month for alimony will not work if you only earn $1,300 per
month. Also, agreeing to refinance the
house will not work if you know you cannot get approved for a refinance. Agreeing to things you cannot comply with is
the quickest way to ensure that you are back in court fighting about things
again. So when preparing for mediation,
take some time and learn what you are and are not capable of agreeing to.
·
Evaluate
your alternatives. As successful as mediation can be, not all cases settle. What
is your plan if mediation does not result in a settlement? What will the rest of the contested divorce
process look like? What will the costs
be? What will a judge likely decide in
your case? In our article “How to
Negotiate Better in Three Steps” we called this developing you BATNA, or Best
Alternative to a Negotiated Agreement.
Developing your BATNA will serve two big functions. First, it will help you stay grounded during
the mediation. It gives you an alternative to compare and contrast with the proposed
settlement and help you decide whether the proposed settlement is good for you.
Second, it will keep you from feeling locked into mediation. Mediation is a voluntary process. For it to stay voluntary it is important for
you to know that you have alternatives if mediation is not working for
you.
·
Leave
blame at home. Divorce is a hard experience. People have said and done things
they should not have done, emotions are running high, and feelings are
hurt. This comes out at mediation and
that is ok. However, it is important
that the “bad blood” does not derail the mediation process. Leave as much of
the blame at home as you can and try to take a problem solving approach rather
than a fighting approach to your case. This is hard thing to do during a
divorce. However, it is essential if you want to get the most out of mediation.
Stay focused on what you want out of the process – a negotiated resolution. Fighting and blaming is not what will get you
there.
I hope these
tips will help you prepare to get the most out of your mediation. If you have any questions or would like to
know more about mediation, please do not hesitate to contact our office.
Adam M. Sutton,
Esq.
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