We Want To Mediate. How Do We Get Started?

“We agree completely on everything, including the fact we don’t see eye to eye.” — Henry Kissinger
 
Sometimes clients are in a hurry to start mediation. After I speak to both parties in separate no charge fifteen minute confidential phone consults, I send them a joint email thanking them for reaching out and attach the forms that we use in mediation. The basic forms are: (1) a confidential intake form; (2) an Agreement to Remote Mediate; and (3) financial worksheets. Not all cases require financial worksheets but many family cases do require the use of financial worksheets.
 
Each party fills out the confidential intake form electronically before we meet in mediation. The purpose of the form is to get each party to think about what the goals are for mediation, as well as what is currently going well and what is currently challenging. What does each party fear? How well do the parties communicate and cooperate? The responses also give me information about the parties, such as whether there are particular items of concern to either party, including alcohol, drug use, domestic violence, and/or mental health issues.
 
The Agreement to Remote Mediate is a document that spells out what the mediation process entails, the role of the mediator, confidentiality during mediation and exceptions to confidentiality, the importance of full disclosure of property and financial information, the use of joint and separate sessions, and fees, among other items. The parties and I all sign and date the last page of the Agreement to Remote Mediate before we meet in mediation. I go over the key points contained in the Agreement during the first few minutes of the first mediation session.
 
I ask the parties to take their time in filling out the financial worksheets and to fill them out electronically when they are ready to discuss financial matters in mediation. Parties list information regarding their bank accounts, investment accounts, defined contribution retirement accounts, defined benefit retirement plans, real estate, life insurance, business or professional interests, household items, vehicles, credit accounts, separate property, income, health insurance, and debts owed to each party, among other items.
 
Sometimes it is difficult to collect these three completed forms from my clients. I will gently remind my clients to email the Agreement to Remote Mediate and the intake forms to me the day before we meet. Sometimes clients do not completely fill out the financial worksheets when they are ready to discuss financial concerns. They may choose to discuss financial issues during the first session or during the second mediation session. We use the financial worksheets to decide how the parties will divide assets and liabilities in family cases.  In addition, if I am calculating child support, I need to know how much time the children will be spending with each parent, the monthly gross income for each parent, and the monthly medical, dental, and vision premiums for the children.
 
After the parties have identified each issue, brainstormed solutions to each issue, evaluated each solution, and come to a joint decision on each issue, I write up a draft settlement agreement for the parties. The agreement is non-binding until both parties sign it. I encourage a legal review of the agreement and explain that even though I am a lawyer, as a mediator I am their neutral and not their legal advisor.
 

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