Preparing for divorce mediation is like preparing for trial. You either know what you’re doing and you do it right, or you risk losing everything.
Of course, going through mediation is not nearly as dramatic as going to trial.
In mediation you don’t have pin-stripe suited lawyers making impassioned closing arguments in wood-paneled courtrooms. You also don’t have an audience of strangers watching as you and your spouse argue about the intimate details of your married life.
But just because divorce mediation is more like a business meeting than a made-for-TV movie, that doesn’t mean that you can walk in the door completely unprepared, and still walk out the door with a decent settlement agreement.
Like every other part of your divorce, your level of preparation will determine your rate of success.
When the stakes are as high as they are in a divorce, you don’t want to leave your success to chance.
How to Prepare for Divorce Mediation
Properly preparing for divorce mediation is a lot of work. If you’re smart, you’ll start preparing for your mediation as far in advance as you possibly can.
The last thing you want to do is wait until the day before your mediation to start figuring out what you’re going to do.
Here are the five different ways you will need to prepare for divorce mediation if you want to have the best chance for success.
The 5 Steps to Preparing for Divorce Mediation
1. Understand the Rules.
The first question you want to ask yourself when you’re getting ready for mediation is: What kind of mediation is this? By that I mean, is this court-ordered mediation (which means the judge told you that you HAVE to go)? Or, did you and your spouse decide yourselves that you want to use mediation to try to settle your case?
Why does that matter?
It’s a lot harder to resolve your disputes if you or your spouse is only attending mediation because you have to do so. When mediation is your personal choice, both you and your spouse are much more likely to be invested in the mediation process. That investment increases the chances that you will reach an agreement.
That’s not to say that court-ordered mediation doesn’t work. If you and your spouse both go into the mediation with the right attitude, court-ordered mediation can work beautifully. But if one of you sits in the mediation and refuses to compromise on any issue, you’re not going to get very far.
Know the Logistics of Your Mediation
Another key part of understanding the rules is knowing the logistics of the mediation. For example, it’s important to know how many mediation sessions you will have and how long those sessions will be.
If you only have one or two short mediation sessions, you may not have time to get to all of the issues you need to resolve. In that case, it might be better to focus on just a few issues, rather than trying to talk about everything while resolving nothing.
The length of your mediation sessions also matters.
Some mediators like to mediate for as long as it takes to reach an agreement on everything. That could mean that you will be in your mediation session for 8 – 10 hours or more! If that’s the kind of mediation you are using, you've got to prepare yourself for that kind of marathon in advance.
Another important ‘logistic” is whether you will be mediating with or without lawyers. While mediation typically occurs with only you, your spouse, and the mediator present, there is “lawyer assisted mediation” too. In that type of mediation, your lawyer and your spouse’s lawyer will be with you in the mediation room.
Lawyer-assisted mediation can be a Godsend if you don’t feel confident or knowledgeable enough to negotiate for yourself. On the other hand, lawyers also tend to argue a lot. The wrong lawyers will prevent you from ever settling your case. They can make your mediation a complete waste of time.
How Do You Figure the Logistics Out?
The best way to figure out the details of how your mediation will be conducted is to ask.
If you and your spouse hired the mediator, you can call the mediator and ask him/her your questions in advance. Or, you may have an initial mediation session where you and your spouse can ask your questions, and the mediator can explain his/her process.
If you are attending court-ordered mediation, you may not have the luxury of being able to talk to the mediator before you walk in the door. In that case, make sure to talk to your lawyer in advance about what to expect during mediation. (NOTE: Even if you can’t talk to the mediator, you may be able to talk to his/her secretary. S/he may be able to answer basic logistical questions like how many sessions you will have and how long they will be.)
2. Know Your Facts
You can’t negotiate something if you don’t know it exists. You can’t start deciding who gets what until you know what there is to divide.
That’s why, before you start negotiating anything, you’ve got to get your financial documents in order.
As tedious as it is, you’ve got to collect all of your financial information. Then you’ve got to organize that information. Then you’ve got to use that information to make a budget or a balance sheet.
Once you have THOSE numbers, then you can negotiate with confidence, because you will actually know what you’re talking about.
A huge mistake that many people make in mediation is that they want to start negotiating without knowing their real numbers. That’s understandable. Putting together a small mountain of financial information is a pain in the behind.
But not having that data before you negotiate can cause you to make huge mistakes. It can also weaken your negotiating position a TON!
When you can back up your settlement demand with facts, your demand is credible. When your demand is based on thin air, it’s easy to dismiss it as being unreasonable.
Hard data is hard to argue with.
Know More Than Your Numbers
Knowing your numbers is important in your financial negotiations. But if you’re negotiating issues that involve your kids, you’ve got to know much more than your numbers. You’ve got to know your kids, and the details of their lives.
For example, if you’re negotiating a parenting time schedule, you need to be aware of your kids’ activity schedules. Fighting to get parenting time with your kids after work is senseless if your kids are in sports practice at that time and couldn’t see you then anyway.
It also helps to understand the kids’ school and medical history. It will be a lot easier to convince your spouse that s/he can trust your parenting if you know what your kids need, and are more active in their lives.
3. Know Your Rights and Responsibilities
A big part of preparing for mediation means understanding your rights and responsibilities. That means you have to talk to your lawyer long before your mediation starts.
While many people think that you don’t need a lawyer if you are mediating your divorce, nothing could be farther from the truth. Lawyers know what the law requires you to do. They also know what the law entitles you to receive.
Until you know both of those things, negotiating your divorce is like walking blindfolded through a minefield. You might make it out alive, but your odds aren’t good.
Another reason you need to get legal advice from a lawyer in preparation for your mediation is because the mediator can’t give you legal advice. The mediator is a neutral third party. S/he may be able to tell you in general terms what the law requires, but s/he won’t be able to tell you how you should apply that law in your case. S/he also won’t be able to tell you what you should or shouldn’t do in your mediation.
That’s a lawyer’s job.
4. Prepare Your Negotiation Strategy
You don’t need to be a master negotiator to settle your divorce in mediation. You do, however need to know a few key points.
The most important thing you need to know to negotiate effectively, is: your goal.
Know what you want.
Knowing what you want seems pretty basic. Yet, in the heat of divorce, when your head is spinning and your world is rocking, it’s not always easy to figure out what you want.
That's why preparing your mediation goals in advance is so important.
But just having goals isn’t enough. To be effective, your goals must be specific, measurable, realistic and concrete, your chances of achieving those goals in mediation aren’t great.
For example, if your goal is to stay married, but your spouse wants a divorce and is already living with someone else, your goal is not realistic. (Sorry!) If your goal is to reach a “fair” settlement, your goal is not specific enough. (What is "fair?")
Neither of those goals will likely lead to a successful mediation.
Another reason that you want to make concrete goals in advance of your mediation is because once you’re in the heat of the moment, it’s easy to forget what you’re negotiating for. When that happens you end up agreeing to things you later regret.
That's why knowing why you want whatever it is that you want is also important. Once you know why something matters, it’s much easier to use that goal as your guiding star in negotiation.
At the same time, you’ve also got to know what doesn’t matter. Knowing what you’re willing to give up in order to get what you want is the key to a successful negotiation.
Know Your Bottom Line
In addition to knowing what you want before you start mediating, you’ve also got to know your bottom line. You’ve got to know what your absolute deal breakers are. It also helps if you know what your spouse’s deal breakers are.
When figuring out your deal breakers, you also need to dig in to the reasons why those things are deal breakers for you. What is it about those things that are important to you? What are you afraid will happen if you lose those things?
Again, knowing your “why” will tell you a lot. It will also help you identify what truly matters to you.
For example, lots of people say that keeping their home is their deal breaker. They will give up everything else just so they can keep their home. But, when you ask them “Why?,” their answer is often, “I want stability for my kids.”
The problem is, if you have to lose your house in a foreclosure a year after your divorce because you can’t afford the payments, your kids are NOT going to have the stability you wanted.
That’s why knowing the reason why you want something matters. In the example above, if stability is your real end goal, then negotiating a solid financial future will ultimately provide more stability than keeping the house – even if you honestly don’t want to move.
Know Your Spouse’s Bottom Line
The key to a successful mediation is being able to create a deal in which both you and your spouse get as much of what you want and need as possible. While that may sound like “pie in the sky,” that’s exactly what can happen if your mediation goes well.
But it can’t happen if the only needs you see are your own.
The more you can anticipate what your spouse wants, and know what your spouse won’t give up on, the greater your chances are for reaching a deal you both can live with.
While you’re thinking about what your spouse wants and what his/her deal breakers are, be honest with yourself. Don’t let yourself get frustrated or give up simply because you and your spouse may want the same thing, and that thing can’t be divided. (Or so you think!)
Figuring out how to divide things is what you will do in mediation. While you’re preparing for mediation, all you need to do is identify everyone’s goals and deal breakers.
Doing just that much will put you way ahead of the game.
5. Adopt the Right Mindset
Attitude is everything. If you approach your mediation with the mindset that, “This will never work!” then you’ll probably be right. It won’t work.
If your goals are rigid and you’re not willing to compromise on anything, mediation also probably won’t work. The same thing is true if you try to mediate while you’re super angry or an emotional wreck.
If all you do in mediation is rehash the same argument you’ve had with your spouse a thousand times before, you’re wasting your time. Unless you deal with how you feel in advance, your emotions and your mindset will sabotage your mediation.
Of course, divorce is nothing if not emotional. It’s not realistic to expect that you will be able to mediate your entire divorce without getting at least a little bit emotional a couple of times. (Okay so maybe you will get more than a little bit emotional!)
That’s the reason why preparing in advance for what you will do when you become emotional can help keep your mediation on track.
So, what can you do to prepare for the inevitable surge of emotions that will happen in mediation?
You can give yourself permission, in advance, to take a break. You can practice breathing techniques that calm you down now. Then, when you feel your blood pressure rising during your mediation, you will be able to use those breathing techniques to calm yourself down. (The best part is, no one else needs to know you’re even doing it!)
Consider Your Alternatives
Not every divorce case settles in mediation. What will happen if your mediation fails? What’s at stake?
Obviously, if you don’t settle your divorce during mediation, that doesn’t mean that your case just goes away. It means your divorce goes to court. What will that cost you? How long will your divorce drag on if you have to go all the way to trial?
Think, too, about what the likely outcome of your divorce will be if you go to trial. Knowing those possible outcomes in advance of your mediation will give you a measuring stick to use when you’re considering any deal your spouse offers.
If you don’t know what those outcomes could be, ask your lawyer that question now. That’s a crucial part of preparing for your divorce mediation.
Being Prepared is the Ultimate Game-Changer
Preparing for divorce mediation is no one’s idea of a good time. It’s easy to get overwhelmed and feel like chucking all the preparation and just “winging it.”
Yet, nothing will affect the outcome of your mediation more than your level of preparedness.
Does that mean that, if you’re properly prepared, your case will settle? Not necessarily. But, if you’re not prepared and your divorce does settle, you may find out later that the settlement you made wasn’t nearly as good as you thought.
This post was originally written in May, 2018 and updated in March, 2023.