Just about every new client asks me this question. Usually, a potential new client will reach out to me by email or by phone call. I set up separate confidential phone calls with the potential client and his or her spouse or partner, since most of my cases are family mediations involving separation and divorce. These phone calls are called intake calls where each party can ask me questions about how the mediation process works and share information with me about the case. After the intake calls, I send each party an intake form to fill out and to send back to me. The intake form provides me with information about each party and also facilitates each party to start thinking about mediation goals and interests. A date is set for a first mediation session. At some point during this intake process, a client will ask me, "So...how should we prepare for our first mediation session?"
Here are my tips for how to best prepare for mediation:
1. Be prepared to be present and to listen. During mediation you will take turns listening and speaking. Bring paper and pen to take notes during mediation when the other person is talking. People often like to talk; it's much harder to listen. Keep in mind that listening does not mean agreeing. Tears and laughter often occur during each session -- bring tissues. Schedule the mediation for a time when you are high energy and well rested, such as mid to late morning.
2. Think about the issues you would like to discuss and prioritize them. One client said to me during intake, "We've never mediated before and we've never gotten divorced before. We don't know what we don't know. Can you help us figure out what issues we need to talk about?" In general, divorcing couples need to think about discussing a parenting plan if they have children that will include resolution of issues such as custody, parenting schedules, holidays, vacations, and child support. If there are no minor children, a mediation may begin with discussion of how to divide assets and liabilities, how to calculate spousal support if applicable, and what to do about real estate, taxes, retirement, insurance and other issues.
3. Gather necessary documents and information. Organize your financial documents and record your monthly expenses. Set up an organizational system if you don't already have one in place so that you have easy access to all of your utility bills, mortgage statements, car loan documents, credit card and bank statements, retirement account information, tax returns, homeowner/car/liability insurance statements, appraisals of valuable items, and all other important financial documents and records. Estimate the net worth that you and your spouse have accrued. Often one spouse was involved in handling the finances in the marriage (paying bills, budgeting, investing) and establishing relationships with the family accountant, attorney, and financial advisor. It's necessary for both spouses to be completely transparent with each other regarding all of these matters.
4. Identify key interests. Work out what interests are important to both of you and then work out a strategy for trying to reach a settlement that addresses these interests. Use Bill Ury's interest-based negotiation strategy: (a) separate the people from the problem, (b) focus on interests not positions, (c) get creative and brainstorm a variety of options where both sides can win before settling on an agreement, and (d) use objective criteria to evaluate options. Interest-based negotiation requires communication, collaboration, cooperation, and compromise; positional negotiation involves holding onto a fixed idea or position and not wavering. In divorce mediation, the core issue when there are minor children is what is in the best interests of the children. For example, a parent may want to spend every day of each school break with his or her children after divorce and realize at the same time that it is in the best interests of the children for both parents to share equal time with the children on vacation days. Some parents choose to split school vacations, some parents alternate vacations, and some families vacation together post-divorce.
5. Reality check your case. Each party should retain an attorney with whom to consult at any point during mediation and who can review the written agreement the mediator will draft after all decisions have been made in mediation. (Although I am an attorney, as your mediator, I must maintain neutrality and cannot also function as the reviewing attorney.) Ask the lawyer how he or she thinks a judge may rule on an issue that may be particularly difficult to settle in mediation, if the case were to go to court. Consider the lawyer's wisdom and advice as negotiations proceed in mediation.
6. Assemble a team of advisers if necessary. A divorcing couple may wish to find a certified divorce financial analyst who will work with both parties as a financial neutral. The parties may also want to jointly consult with an accountant, tax adviser, business valuator if either party owns a business, real estate appraiser, therapist, parenting coordinator if there are children, and a retirement expert if necessary. We may bring one of these consultants into mediation for a short period of time by phone call or in person. Each family is unique and sometimes there is no need for a consultant at all.
Ellice Halpern, J.D., is a Virginia Supreme Court certified general and family mediator.