You now have mediation scheduled. What do you need to do in advance of mediation? Be prepared. This is very important. Whether or not mediation is successful oftentimes hinges on whether the individuals are well prepared for mediation. What does it mean to be prepared?

Identify the Issues to be Mediated

First, it is important for both sides to identify what issues they want to address in mediation, and it is equally important to communicate these issues to the other side. When someone states an issue to mediate for the first time at the mediation session itself, it does not give the other individual an opportunity to process, research and otherwise formulate an opinion on that issue beforehand. Therefore, these “surprise” issues at mediation frequently result in no agreement being reached as part of the mediation process.

Obtain and Exchange Relevant Documentation

Mediation is frequently heavy on documentation. This is particularly true in divorce proceedings when the divorcing couple are needing assistance in the division of property or in determining an appropriate amount for child support or spousal maintenance. In such cases, all interested individuals need to know the values of specific property on a specific date (the valuation date). Therefore, it is necessary to obtain retirement account statements, bank account statements, credit card statements, and any appraisals or other valuations on property owned. This may involve needing to obtain an appraisal on a home that is in dispute as well. If the individuals do not have these balance statements or other statements of value at mediation, they will spend a fair amount of time discussing what the values might be, which can be a relative waste of time when the statement would prove the value. The mediation process can then turn into a discussion of what everyone will need to gather in the form of documentation so that these decisions can be made at a follow-up mediation session. If the documents had been gathered in advance, a decision could be reached at the first (and potentially only) mediation session.

This same logic applies when the mediation is about child support or spousal maintenance. In both situations, everyone needs to know the incomes of the individuals involved. To determine the incomes of the individuals, we need to look at pay stubs, income tax returns, W-2s, and for self-employed individuals, much more. It is important to exchange this documentation in advance of mediation. Both sides need an opportunity to review the information in advance and request any additional documents prior to mediation in the event the information exchanged is not sufficient to get a clear picture of incomes. If child support or spousal maintenance is at issue and the individuals do not exchange or bring documentation of their incomes, then the mediation will not be successful, or a follow-up mediation session will need to be scheduled.

think about caucusing

Simply put, caucusing is when the individuals meet in separate rooms during the mediation process. There are several reasons why individuals may want to caucus during the mediation process. There are also pros and cons to the caucusing process. The entire mediation process may take place in separate rooms, with the mediator going back and forth between the two. More frequently, everyone will start out in the same room, and then break out into separate rooms towards the end of mediation when the mediation process involves more negotiating in the attempts at reaching a full agreement.

When the individuals engaged in mediation have attorneys, frequently an attorney may want to separate into different rooms to talk in private with his or client, and then talk in confidence with the mediator about sensitive topics. Tt can also be helpful to break into separate rooms when both sides have discussed all the relevant facts and they are at the point of attempting to reach an agreement. This can allow the mediator to discuss the strengths and weaknesses of that person’s positions on the issues without the other side hearing, which can help facilitate reaching an agreement. While in separate rooms, both sides can make offers to the mediator, which the mediator will then “carry” over to the other room and the other person. Negotiating in this manner will allow both sides to make offers without the other side immediately reacting, and allows the mediator to deliver the offer a bit more eloquently than may have been the case if it came directly from the mouth of the person participating in mediation.

The main disadvantage to caucusing is that it substantially increases the length of time of the mediation process. When the individuals meet in separate rooms, the mediator plays the role of a messenger and has to communicate what was discussed in one to the individuals in the other room. When everyone is in the same room, these communications are made directly by the individuals engaged in mediation. Additionally, when meeting in separate rooms, some details may be inadvertently omitted during the back-and-forth process in separate rooms. This would not be the case if everyone was meeting in the same room.

If you are in the process of scheduling mediation or have already scheduled mediation, it is important to notify your mediator in advance if you wish to meet in separate rooms. Our office has multiple conference rooms available during mediation for caucusing if and when needed. It is our preference to start mediation in the same room, but he understands the wishes of individuals to meet in separate rooms for the reasons stated above.

Be Open-Minded

Finally, part of being prepared for mediation is being prepared to compromise. It is oftentimes said that if everyone leaves mediation unhappy, it was a success. What this means is that you will not get exactly what you want as part of the mediation process. Mediation is usually about compromise and finding an acceptable middle-ground. So, prior to mediation, put yourself in the shoes of your spouse or the opposing party and think about why he or she may be asking for certain things. Gain an understanding of “the other side” and remain open-minded going into mediation. If you go into mediation with a “take it or leave it” approach, you are destined to come out of mediation with no agreement.

it’s Okay to Return for a Follow-Up Mediation Session

As emphasized, it is important to be fully prepared prior to mediation. When you are, the chances of reaching an agreement in mediation are greatly increased. However, if you are not fully prepared for mediation or do not reach an agreement, it is perfectly fine to schedule a follow-up mediation session. A downside of this is the extra cost. Obviously, coming back for a follow-up mediation session will cost more in mediation fees and attorneys fees (if you have an attorney). Further, it will prolong the resolution of the dispute. However, in most cases scheduling and attending a follow-up mediation is a better alternative than litigating the issues in Court.

mediation fees

Adam charges $300 per hour for mediation. Unless agreed otherwise, this fee is usually divided equally between the two individuals participating in mediation ($150 per hour per person). Since it is unknown how long any given mediation session will last, Adam does not require any payments in advance of mediation. The individuals participating in mediation must pay at the conclusion of the mediation session on the same day of the mediation. Therefore, if the mediation session lasts three hours, each person must pay $450 at the conclusion of the mediation session. This payment can be made via debit/credit card, cash, or check. If, for any reason, you do not believe you will be able to pay your portion of the mediation fees, notify Adam in advance of the mediation session. If you cannot pay, the mediation session will likely need to get rescheduled unless the other person is willing to pay the entire cost of mediation. On occasion, a divorced couple will have agreed in their divorce decree that one of them will pay a higher percentage of the cost of mediation or the entire cost of mediation, which may be the case if there is a large disparity in their incomes.