I was recently asked the question: How do I prepare for Mediation in my divorce case?
In the most recent two decades, mediation has become extremely popular in divorce cases. In fact, in Georgia, virtually every county requires mediation as a prerequisite to trial. Moreover, roughly 90 percent of contested divorce cases never reach a final trial. This means that almost every case will settle either at mediation or before–even those that seemingly are destined from the outset to be decided by a judge.
Since mediation is so prevalent, it is absolutely imperative that you prepare accordingly.
What documentation should you bring to mediation?
First, you need to bring every document you would have at a trial to mediation. A large number of cases reach an impasse at mediation because of an outstanding variable. For example, if you do not have an appraisal for the marital home, you may believe that it is worth $270,000 but your spouse believes the same home is only worth $220,000. It is very difficult to come to an agreement regarding asset division when you do have concrete figures.
At a minimum, plan to bring current savings, checking, credit card, and retirement statements. Also, bring payoff balances for any real property or vehicles. It is critical that you bring your recent paystubs if alimony or child support is at issue.
Lastly, in cases where minor children are involved, items that may impact custody are very important. If you do not have the necessary documentation, it is likely better to schedule mediation further out to give yourself time to gather the same than to attend mediation too early. Although mediation is a prerequisite to trial, many counties are flexible as to the date mediation will take place. Serve the opposing side with discovery documents early in your case and do not attend mediation until you have what you need to make an educated decision at the session.
Does it matter who the mediator is?
Second, chose your mediator if at all possible. As with any profession, there is a wide range of mediators. It is important to select one who has significant family law experience and a track record of resolving cases. Too many cases fail because the neutral was unable to bridge a relatively small gap between parties.
When is the best time to schedule mediation?
Third, schedule mediation in the morning if at all possible. It is not uncommon for a mediation to take 4-6 hours to be resolved. Although this may seem labor intensive and quite costly, it is time and money well spent if your case is settled, and a trial is avoided.
How do I prepare emotionally for mediation?
Fourth, adjust your attitude from confrontational to collaborative. Mediations sometimes fail because a spouse comes into the mediation on the attack. This is not the venue to do so. Focus on the issues. Do not spend time making accusations about adultery or other marital misconduct in the mediation setting. Be creative. Give on the issues that you care less about, but stay firm on those that matter. I have seen too many cases fail at mediation on principle. Focus on the big picture. Is it really worth it to keep your case headed towards trial when there is a difference of $10/month in child support or who gets the flat screen television?
Also, numerous studies support the fact that everyone tends to honor agreements that they had a part in more so than those that are ultimately forced on them by a judge. In other words, you are much more likely to actually get child support from an ex-spouse who agrees to pay $750/month in child support than if he were ordered to pay $800/month by a judge. It is also better for children when parents can report to the kids that mommy and daddy have come to an agreement as to them.
Should I meet with my lawyer before the mediation?
Fifth, meet with your lawyer (if you have one) at least a few days before the mediation. Make sure that you are on the same page. Your lawyer will be asked to give a brief statement at the beginning of mediation. If he does not know the facts or what you are looking for, it will be difficult to advocate your position. Most lawyers come to court prepared. Not as many prepare sufficiently for mediation.
What happens after mediation is over?
Sixth, give yourself sufficient time at the end of your mediation to get the entire agreement in writing if at all possible. Many parties walk away from mediation with a handwritten, chicken-scratch “Mediated Agreement” and are told that one lawyer will prepare a lengthier typed version of the Agreement. This too often leads to disagreements as to what was actually agreed to post-mediation. Thus, it is highly recommended that your lawyer prepare a formal, lengthy Settlement Agreement before the mediation. This offer should be made to the other side at least one week prior to mediation. This will afford the other side time to review it in advance of mediation. If this is done, it will help in at least one of four ways. An agreement may be reached before mediation and your case can be settled without necessitating the time and expense of mediation. Alternatively, your offer may be rejected, but a counteroffer will be made. This counterproposal may be acceptable to you or at least you have now isolated the issues for mediation so you know where the heavy lifting will need to happen at the session. Lastly, since you have already prepared the initial formal offer in advance, you will not lose critical time at mediation (where you are also paying for the mediator’s time) drafting an agreement if one is needed after an agreement in principle is reached.
For further assistance in your court case, contact The Porter Law Firm at 678-710-9100.