May 10

Preparing for Mediation in 5 Simple Steps: Your Keys to Mediation Success


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divorce mediation, divorce strategy, divorce tips


Asian man at conference room table preparing for mediation.Preparing for 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 court rooms. 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 mediation is a lot of work. If you’re smart, you’ll start preparing for 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 mediation if you want to have the best chance for success.

The 5 Steps to Preparing for Mediation

"Know the Rules" in red letters in a stark room

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

Dog with glasses in front of chalkboard with equations wondering "What are the 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

Bronze lady of justice statue next to open law book and gavel.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.

Yellow Road sign saying "What do You want?"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.

Two people toe to toe on a yellow line. Standoff in divorce mediation.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

Mindset word cloudAttitude is everything. If you approach your mediation with the attitude of, “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.

Close up of pac man arcade game on the red words "Game Over."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.

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Mediation is a great way to go through divorce, but it’s not the only divorce process out there. To get a simple chart comparing the pros and cons of various divorce processes you can use (i.e. divorce mediation, collaborative divorce, divorce litigation, divorce negotiation etc.), click the button below. It’s FREE!

 

Click Here to Get your FREE Divorce Comparison Chart

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  • I am in awe of your advice. I read each post with deliberate care knowing that I shall have to face that situation at some point. I am not looking forward to it but your invaluable advice definitely gives a road map backed by sound counsel.
    Keep up the good work, keep the articles coming to educate those of us who feel naked and vulnerable to what faces us. With sincere appreciation and thank you for your generosity of spirit and heart.

  • Absolutely nothing can prepare you for a spouse that LIES during the entire mediation process. In my case, mediation was worthless. If your ex could not be trusted in the marriage, (and he was the adulterer, the compulsive gambler and spent marital funds on the whore), he most certainly will not be truthful in mediation. This can only work in the most amicable of divorces!

    • I can definitely see why you feel the way you do.

      In my experience, mediation can work even in divorces that are not amicable. It won’t work, however, when someone lies.

      Karen

  • I am hoping that my spouse and I can mediate our differences which are centered on community assets and spousal support. My question is
    “what proof” is necessary to assert your side? While I can’t imagine my spouse lying under penalty of perjury, to me mediation should start out as an avenue to see what may agree upon and why we don’t agree on the other issues. As an example: Considerable community and separate property funds were used to make improvements to the separate property marital residence. Do we simply start and attempt to agree what the improvements were to begin with? and then decide where the money came from to pay for the improvements? And then try to arrive at a cost or value of the improvements? The spouse’s first declaration in our matter said she paid for all of the improvements out separate property money. I can’t imagine that she really meant that, and believe her attorney fashioned the statement for her, even though she signed the declaration under penalty of perjury. The contractor for most of the improvements has already presented a declaration about who paid him (me!). It is a very obvious conclusion. But the cost of gathering up extensive evidence seems to defeat the purpose of mediation. But if she still maintains her stance that she paid for everything, and I have at least basic evidence to support my side…is the mediation going to work?

    • I think you’re focusing on the wrong thing.

      Mediation is not like court. No one necessarily “proves” anything in mediation. The mediator does not decide who is right or wrong, who is lying or telling the truth.

      Mediation is about getting the two of you to reach an agreement without anybody having to “prove” anything. Of course, that’s not to say that the truth is irrelevant. But if you think of mediation as a negotiation rather than a fact-finding operation, you may get a better result.

      Also, how you arrive at an agreement is up to you. You can start by agreeing on the improvements as you stated. You can go through each and every detail down to the last penny. Or you can just say, “I want x dollars for my share of the house.” Period.

      As for whether the mediation will work, who knows? If your wife digs in and insists on getting reimbursed for things she didn’t pay for, that doesn’t sound particularly hopeful. But, on the other hand, you could always decide you’re better off just getting your divorce done, even if you have to pay your wife more than what you think she deserves.

      Is that right? That’s for you to decide. But, at some point, “done” may be better than “right.” (Plus, insisting on getting every last penny usually ends up costing you more in lawyer’s fees than what you ever get from your spouse. – Sorry!)

      The bottom line is that this is all up to you. You don’t have to agree on anything if you don’t want to do so. Neither does your wife. If either of you dig in and refuse to budge, then your mediation is not likely to go well. But, if you can find a way to compromise, there’s hope!

      Karen

      • Hello and thank you for your very helpful information. I do recognize that the information is dealing with sposes and divorce. My situation is with an ex girlfriend, which I supported financially throughout our 4 year relationship. It involves me deciding to put her on title to real property and also a mobile home (personal property). Everything was paid for by me, with inheiritance cash, 100%. She broke up with me, secretly removed my name, sold the mobile, kept the proceeds. We had an oral agreement she not do that (breached). At mediation, all I seek is the return of my properties. Unreasonable? I am trying to prepare for mediation, have bank statements, etc. I am of the understanding, a dispute regarding a friendship, is different than one of marriage. I believe her actions were caused by a thinking of “she was owed” these things. Any advice? Thank you.

        • The advice I would give you is to talk to a lawyer BEFORE you start your mediation!

          You’re absolutely right, splitting up when you were NOT married is totally different than splitting up when you were married. You’ve got to know your rights and responsibilities before you start mediating. Otherwise, you have no clue about whether what you’re asking for is or isn’t reasonable. That’s why you need good legal advice.

          Finally, I hate to be the bearer of bad news, but we lawyers have a saying. “An oral agreement isn’t worth the paper it’s written on.” That doesn’t mean you can never enforce an oral agreement. But first you have to prove there WAS an oral agreement, and what its terms were. My guess is that that’s going to be hard for you.

          If you were involved with the kind of person who would forge your name on a mobile home title and secretly sell it out from under you, then you’re not dealing with someone who will likely be honest about anything else. Human behavior is consistent. Be glad you’re getting away from this person. It may be an expensive lesson, but it sounds like you will be much better off in the long run.

          I wish you the best.

          Karen

  • I am fearing mediation because I cannot get the hard facts. My husband often gets paid in cash and hides the money, so on the taxes it looks like we make the same amount. He makes at least double what I make. We also own a home that is quite small but has 21 acres of land. The home is only appraised at $300k because in our state land is not valued as high – but if we subdivided we could get up to $600k. My husband refuses to subdivide the land and wants to keep the house, where as I also fear of losing out. I am a complete wreck that he will ruin me financially and set himself up comfortably.

    • If you can’t get the facts from your husband and you are afraid he will ruin you financially, you need a good divorce lawyer. Mediation is an excellent alternative to going to court, but it won’t work unless both you and your husband produce all of your financial information. If your husband is hiding money and information, you really need to consult with a lawyer and probably go to court. (Sorry!)

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