Mediation is a voluntary process where parties jointly select a neutral third-party facilitator to help reach settlement agreements for all or some of the issues in their divorce proceeding. The mediator is a private party who is engaged and will typically be compensated based on the time they spend at his or her hourly billing rate. Three-party mediations consist of each opposing party and their mediator. Five-party mediations consist of those same participants plus each party’s attorney.
Because this is a voluntary process, any resolutions are the result of agreements. The mediator does not have the power to make decisions, but they typically document the agreements made by the parties in some fashion. Mediation can be a very good way to narrow the issues in a case and resolve it completely if it is approached properly. So, what should you do to best prepare in order to secure the most favorable outcome through the mediation process?
Mediation Memorandum:
It is hard to understate the importance of a comprehensive mediation memorandum. The mediator is diving into your case mid-stream. Facts and evidence that have been well-established are not known to the mediator. It is imperative that in your memorandum you educate the mediator with the relevant factual background, litigation history, prior settlement offers, etc. Typically, the memorandum is confidential; meaning, it will not be shared with the other side. This provides an important opportunity to support and advocate for your positions. Videos, summary exhibits, and demonstratives can be highly persuasive and serve as great resources to synthesize large amounts of information for the mediator.
Gameplan:
This is the time to strategize. Give thoughtful consideration to the areas in which you are willing to compromise, and those areas where you may be unwilling to compromise. Consider best case scenarios as well as walk away offers. In going through these exercises, you will eliminate surprises on the day of mediation and be better emotionally equipped to handle what has been referred to as the “mediation rollercoaster.” You also want to consider whether you would like to involve any 3rd parties. One of the advantages to mediation vs. a trial is that if there is a barrier to resolving an issue at mediation, one of the parties can simply pick up the phone and call the financial advisor, tax counsel, divorce concierge, etc. You want to make sure that availability is confirmed, and preparations are made with these parties beforehand.
Final Preparations:
Anticipate that a mediation session may go longer (potentially much longer!) than scheduled. With this possibility in mind, childcare arrangements should be made. Parties should be well rested, and they should make a plan for their nutrition throughout the day. There will likely be periods of downtime when the mediator is caucusing with the other party and his/her attorney(s). Well-prepared individuals will take advantage of this time by taking a walk in fresh air, and/or enjoying a snack. Hangry clients make bad deals. Prepare accordingly.