EP 128: How to Prepare for Mediation

Mediation is very common in divorce. Some couples use mediation to only resolve one issue, such as custody. Other couples use mediation to resolve an entire divorce. The goal of mediation is to resolve thorny issues outside of court. Even though mediation is a non-binding process, you should take it seriously, because it can save you a lot of time and money if it is productive.

If you go this route, you, your spouse, and your respective attorneys will sit down in a room with a mediator that you and your spouse have agreed upon. Although mediation has a reputation for being easier than litigation, it is still very difficult to sit across the table from your spouse and tackle the most difficult issues of your divorce. All of the things that went wrong over the past several years can come flooding back, making this high-stakes process even more emotionally charged.

The key to mediation is preparation. Preparing for mediation is straightforward, but it is not easy. It requires a lot of time, research, and thinking. If you prepare in advance, you will have a much greater chance of success. Preparation will help you focus on the issues that are most important to you and stick to the facts.

There are three main components to preparing for mediation:

1) Prioritize the issues that are most important to you.

What do you want out of this divorce? Make a list, and decide which issues are most important to you. Your list may have ten things on it, or it may have fifty. You can stay focused on the important issues and avoid lengthy arguments about items low on the list.

2) Prioritize the issues most important to your spouse.

Knowing which issues are most important to your spouse will help you negotiate from a position of strength. You will have to use your best guess about your spouse’s priorities, but you probably have an idea of what that list would look like. This hypothesis will help you anticipate which issues will be contentious. Then you can prepare counterarguments and supporting documents for those issues.

3) Make a game plan.

Finally, you have to plan for different scenarios that may arise. For each issue, figure out what would be:

The best-case scenario
An acceptable scenario – In reality, you will not get everything you want, so what would be less-than-ideal, but still acceptable?
An unacceptable scenario
For example, consider seeking custody of your children. If you win full custody, that would be a best-case scenario. An acceptable (but more realistic) scenario would be some form of shared custody. An unacceptable scenario would be no custody at all

If you gather all of this information on paper, it will help guide you in the mediation room. It will help you focus on what is important, support your position when you need to, and stay on track if things start to get derailed. You can advocate for yourself with confidence. You will be so prepared that nothing will surprise you. If your spouse tries to say something misleading, such as misrepresenting the value of the house, you will have that information at your fingertips.

Mediation is an emotional process. Therefore, preparing ahead of time will prevent you from getting thrown off by those emotions. You will go in knowing your priorities, and you will have the evidence to support your point. It will take hours and hours to prepare well, but it will help you enter mediation from a position of strength.

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