In most divorce cases, you’ll find yourself in mediation. Mediation is where parties (including attorneys) meet with a neutral third party to attempt to resolve the issues of the case. It is normal for people to be very nervous about mediation.
Here are some helpful hints to get you through the mediation process successfully:
1. Remember mediation is not court. You will not be “testifying” nor will a Judge or the mediator make decisions for you. Any resolution at mediation will be with your consent. No agreement happens without your permission. This is the time when you have power. You get to think about proposals, make alternative suggestions, and protect that which is very important to you. Any final decision will be logically based and a compromise with which you can be content. No one is ever totally leaving mediation with an agreement but, there is generally a sense of relief the case is almost over and a peace in having some certainty of how the future will look.
2. You should map unfamiliar routes before the day of mediation. Mediation generally occurs in either the courthouse or the mediator’s office. Often these locations are in the downtown area which can be logistically confusing and very crowded. The last thing you want to do is arrive at mediation frustrated. A few days before mediation, drive the route. The morning of mediation leave in plenty of time. Keep in mind parking may be difficult. Make sure you have money for meters. It is perfectly acceptable to arrive early. Most mediators want you to be comfortable and will provide coffee or soft drinks. You can have a few minutes to adjust to your surroundings before getting started.
3. The mediator cannot give you legal advice. Many people attempt to go to mediation without an attorney. If you chose to go this route, please know that mediators cannot give you legal advice. They can only work towards a negotiated common ground. They cannot tell you if it is fair, if it is in line with the law or if it is better or worse than you’re likely to be awarded at trial. You cannot rescind a mediation agreement because you didn’t have an attorney with you. This is generally true no matter how unfair the agreement you signed. If you choose to attend mediation without an attorney, understand the mediator cannot protect your interests and is not your friend or advocate. Generally, mediators attempt to develop a rapport with the parties. This is a good thing and increases the likelihood of successful negotiations. Sometimes unrepresented clients interpret this friendliness to mean the mediator would not allow them to make a wrong move. Understand the mediator would be violating the rules and premise of mediation if he helped you. This is true to matter how nice the mediator.
4. Let your attorney speak for you. Ideally you have hired a very experienced attorney who is familiar with the case and will present the issues in a logical, non-emotional fashion. Let the attorney do his job. Don’t go into mediation with the mindset to “take over” and air all of your grievances and perceived transgressions. This is not the time to point fingers or seek revenge. Your attorney will ask you to answer questions if that is appropriate or sometimes your attorney will ask you a direct question. Answer as concisely as possible. Sometimes the attorney will say things that may initiate a reaction from you. For example, you may have discusses an alimony number of $1,000. However, the attorney goes in and asks for $2,000. Don’t interrupt or correct the attorney. It is likely the attorney is leaving room to negotiate or feeling out the other party’s “bottom line”. Let the attorney earn the money you are paying.
5. You can ask for a break or to be in a separate room. If you get to the point that you feel pressured, are uncomfortable or emotional, you can ask for a separate room. Often people going through a divorce will begin to push each other’s buttons during the mediation. Rather than get angry or emotional, simply ask to speak to your attorney in private. This is perfectly acceptable and even normal in mediation. You can then express to your attorney how you’re feeling and decide together whether it would be beneficial to gather again in the same room. It is not all unusual to remain in separate rooms and have the mediator go back and forth between the two. Often this can alleviate some of the emotion and stress and help you to think more logically. It also prevents the other attorney from “putting on a show” for his client and allows your attorney to speak more freely. Don’t be shy about asking for a private room. It can be very beneficial for mediation.
6. Dress appropriately. I have seen women come to mediation dressed like they were going on a first date. I suppose they are trying to make their spouse jealous or hope that he’ll see what he is missing. For everyone else in the room, it makes things a little bit uncomfortable. No one can comment on it but we all see it. If you really want this mediation to be successful, don’t dress too sexy. On the other hand, you don’t have to dress for court. You should wear comfortable casual clothes to mediation. You will likely be there for hours and you don’t want to be distracted by what you’re wearing. Yoga pants and a sweatshirt is a little too casual but, slacks or jeans and a conservative shirt is perfectly appropriate.
7. Come prepared. Bring laptop with your file and financial information on it. I suggest you keep everything you have provided your attorney and everything your attorney has provided to you on a password protected jump drive. This includes all of the bank records, statements and financial documents you have provided. Your attorney should have these things and should have isolated and consolidated all of the things he believes will be relevant. However, it is good for the client to have the documents just in case. No matter how proficient the attorney, the client should always be informed, prepared and knowledgeable. Make a list of all the things that you want to ensure are covered in the agreement. Sometimes it goes very and, if you don’t have a checklist, things will be left out. At the end of the day, you have to live with the consequences of the mediation agreement.
8. Insist on meeting with your attorney before mediation. There should be no surprises at mediation. Your attorney should meet with you prior to mediation to inform you on what to expect. Also, you will want to de-brief your attorney on any changes in visitation or financial status since your last meeting. You will also want to be prepared to give your attorney a range of acceptable resolutions. For example, if alimony is an issue you would let your attorney know what you’d like to receive in a perfect world and what you’re willing to accept. You should also confirm with your attorney if your expectations are reasonable. If you’re outside of a normal resolution, it is better to hear it before mediation and begin to wrap your mind around reality than to be blindsided at mediation. If there are debts and assets, your attorney should put these into a spreadsheet (typically called an equitable distribution worksheet) prior to mediation. Check the worksheet to ensure everything is included. Also, if there a children, ask your attorney for a sample “parenting plan”. Review this prior to mediation. It is likely there are things in the parenting plan that you haven’t considered and reviewing it prior to mediation will help you present a thoughtful and comprehensive proposal.
9. Speak freely. Mediation is confidential. You don’t have to worry about any of your suggestions or proposals coming back to haunt you later. Generally, any offer you make at mediation cannot be brought up at a later hearing. For example, if you offer to pay for the house at mediation and you don’t reach an agreement. You can ask the court to force your spouse to pay for the house later and your spouse can’t tell the court you offered to pay for it at mediation. Feel free to make whatever offers you would like at mediation without concern you’ll be bound by those offers if you don’t come to an agreement. Also, you can ask to come back to a second (or third) mediation. If there is information that is missing or you just don’t have enough time to get to all the issues, it is perfectly acceptable to ask to come back to an additional mediation. Especially on complex cases it can take two or three sessions to resolve all of the issues. It is not cheap but it is still vastly less expensive than trial.
10. Once you sign, it is done. If is common practice to sign agreements right there at mediation. Often attorneys and mediators prefer to sign immediately because often agreements fall apart once the parties get home and begin thinking about it. It’s not that the agreement is unfair, but people begin to get anxiety that the divorce is almost over, become paranoid that they forgot something and start changing and adding to the terms until they no longer have an agreement. But, understand if you do sign the agreement, it is done. There are very limited bases for overturning a settlement agreement. It is difficult and expensive to attempt. Therefore, make sure you understand the document you are signing. Read it carefully and ask all of your questions. For better or worse, when you sign it you will be bound by it.
Many people are very nervous for mediation. These tips should help you feel more prepared and ease the nerves. Just remember mediation is a good thing. You have power at mediation that is lost at trial. Don’t expect to leave mediation happy but, you can leave mediation with peace because you helped solve your issues.
If you found this article helpful, you’ll love the advice you’ll find in Divorce with Joy – A Divorce Attorney’s Guide to Happy Ever After. Click here to get your copy now.
Divorce with Joy provides information about divorce and legal issues designed to help users cope with their own legal needs. This legal information is not the same as personal legal advice – the application of law to an individual’s specific circumstances. If you want professional assurance regarding your personal situation, please consult a lawyer. If you are a lawyer, please review the authorities personally to determine their application to your case.
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