How to Prepare for Family Mediation

1. Learn all you can about mediation. Read articles, peruse web sites and ask questions of the mediator and your lawyer if you have one. The better-informed you are about the process, the more comfortable you will be with it.

2. Make sure your lawyer is familiar with mediation, has worked with mediators in the past and is comfortable with and supportive of your choice to mediate. It is important that your lawyer and you both have confidence in the choice of mediator. If your lawyer has recommended the mediator, make sure that you speak with him or her. If you are suggesting the mediator, have your lawyer call the mediator if your lawyer has not worked with the mediator before.

3. Choose the right mediator for you and for your case. Do you want an experienced mediator? Do the qualifications or background matter? Do you need a certain personality or mediation style? Some mediators are more willing than others to evaluate the merits of the case, and share their opinions with the parties and their lawyers. Your case may need a mediator with specific expertise. Sometimes cultural, gender or other factors might be important in selecting the mediator. Discuss all of this with your lawyer before selecting your mediator.

4. Be familiar with the basic “ground rules” of mediation. These include being well prepared, and fully aware of the alternatives to an agreement for both of you; a focus on needs and goals rather than legal positions; honest and full financial disclosure; confidentiality; physical and emotional safety for all participants; and courtesy to the other party, their lawyer and the mediator. In mediation, everything is to be gained by courtesy and forthrightness. Making personal attacks on the other person or their lawyer provides no benefit in mediation, nor is it an effective negotiation technique.

5. Be clear about your own needs and goals. The focus of your first meeting with the mediator will be to ensure you understand your legal rights and obligations, and also that you have fully assessed your own needs and goals. Spend some time before that meeting reviewing your needs and objectives so that you can communicate them clearly. It is advisable to consult with a family lawyer before your first meeting with the mediator, so that you will understand, as best it can be assessed at this early stage, your legal rights and obligations.

6. Try to assess the other person’s needs. Spend some time thinking about the other person’s needs and goals as best you can understand them.

7. Know what you need in order to be as effective in mediation as possible. Do you work best with a detailed agenda, or are you a less linear thinker? Do you need to have facts and figures, or do you work best with general ideas? Do you work best with one idea at a time, or with several ideas on the table at the same time? Do you prefer shorter meetings with limited agendas, or longer more free-ranging meetings?Do you need your lawyer to attend with you? Understand your own limitations and strengths so that you can help the mediator structure the mediation in a way that will work well for you.

 

8. What are your concerns about mediation? Are you concerned that the other person is a better “talker” than you , or that he or she has a better grip on the financial details? Or that your anxiety to end the dispute might make you agree to something that isn’t fair? Are you worried that the other person’s anger might interfere with the mediation? Or that you will just “give in” to the other person, as you always have? Are you concerned about bad faith, or that the mediator may not detect the subtle intimidation tactics used by the other person? Has there been violence or emotional abuse in your relationship, or are you fearful that there might be? Discuss your specific concerns with your mediator; find out how she might deal with them. The first meeting with the mediator is confidential between the two of you, so you can confide in her about your concerns.

9. Be prepared to follow some basic, fair and constructive rules about negotiating: be prepared to back up your position in mediation with a rational explanation or reason. Be prepared and willing to explain your reason for disagreeing with proposals made by the other side, and always make a counter-proposal. If you make an offer, do not make another one until you get a counter-offer. And make sure that each person is making concessions of about the same value. These basic rules can prevent frustration with the negotiation and deadlock.

10. Consider going for individual or family therapy to support your choice to mediate. Having a professional onside to help you deal with the emotional fallout for you, your ex-spouse and your children at this very hard time can be enormously beneficial. If your mediator recommends therapy, act on the recommendation, as it will enhance the success of the mediation process.

11. Be prepared with all relevant financial documents. The mediator will ask you to complete a sworn financial statement, preferably with the assistance of your lawyer. Discuss with your lawyer, before mediation, what is expected from you in terms of financial disclosure and have it ready for the first meeting if possible.

12. Let your mediator know in advance if either you or the other person has any special dietary, cultural or other needs.

13. Be honest with your lawyer. Research suggests that clients often do not disclose all that they should to their lawyers. Your lawyer is your greatest ally in the mediation process. You are tying his or her hands if you hold back important information. Your lawyer needs to know enough about you and your goals to feel comfortable supporting you in your choice to mediate and the decisions you make, and also to know how best to help you in the process.