Preparing for a Successful Mediation
I will start by saying—I don’t think there is a situation in which you could be too prepared for mediation. Preparation is absolutely the key to a successful mediation. When you take the time to thoroughly prepare, you have the edge in the negotiation from the outset.
01// Know Your Numbers
In most situations, both sides have exchanged a lot of information before attending mediation. If you feel you do not yet have everything you need to be able to make an informed decision, be sure your attorney is doing everything to get what you need from the other side or any other third parties, so you can adequately prepare. Waiting until the morning of mediation to exchange documents (or—gasp!—request them) tells everyone you are not ready for your mediation.
If this is a divorce proceeding, your divorce attorney should have a working spreadsheet containing all assets and liabilities owned or claimed by you or your spouse. Your attorney should have already researched any real property owned or claimed by either of you, which includes having obtained copies of the relevant real property records. Certain types of property requires a financial expert to assess a value or identify it as separate property—those expert reports should be completed and exchanged with the other side before you attend mediation.
If child support or post-divorce maintenance is an issue, you should have a clear understanding of your budget, and it should be prepared to exchange with the other side.
Of note—be sure you will have access to current balance for all financial accounts while you attend mediation. Balances are customarily updated in real time, particularly when you are dividing an estate down to a strict percentage or dollar.
02//Know Your Goals for Mediation
Think through your best and your worst-case scenarios, and try to identify or understand why you think certain outcomes are good or bad. There will almost always be more than one way to achieve a same or similar result. At mediation, you will be expected to be flexible, which will include trying to see things from other perspectives.
You can prepare to be flexible by working to understand your own motivations.
Identify anything you feel is a non-negotiable so you and your attorney can address it with the mediator. Your mediator will be most effective when he or she understands why each side wants what they are asking for. Do not wait until the morning of mediation to start thinking about what you want and why—this also shows everyone how unprepared you are, which also will make everyone feel like you are wasting their valuable time.
03//Know the Strengths & Weaknesses of Each Side
What does each side have at risk if this case or issue were to be tried to a judge or jury? What does the Texas Family Code have to say about the issue? Are experts involved already? If so, what are their opinions on the relevant issues?
Think about the evidence that may be presented at trial, including the dirty laundry that may be aired regarding you and your opponent. It is imperative to know what is at stake if you do not resolve your matter at mediation. Taking the time to identify these aspects of your case prepares you to use them knowledgeably while finessing a tricky settlement.
04//Meet with Your Attorney
Around a week before mediation, meet with your attorney to prepare for mediation.
By this time, most of the highly detailed work of exchanging information and preparing
spreadsheets should be done. You should use this time to analyze the ranges of outcomes for the issues being mediated.
If this is a divorce matter, use this meeting to work with your spreadsheet to understand the various ways to achieve your desired property division. If child support or post divorce maintenance is at issue, make sure your budget is current, accurate, and ready to exchange.
Now is the time to tweak things you are prepared to show the other side. Remind your attorney of what is important to you and why, and what your goals are for the
immediate future of your case and the life you will live after the legal proceeding is over. Make sure the settlement options you are preparing to negotiate prioritize your values and ultimate goals.
05//Practical Planning for the Day of Mediation
Do you remember taking final exams? Mediation day is like that, but times 10. Your homework will already be done, but you still need to prioritize your mind and body so you can fully show up at your mediation.
This starts with being well-rested (to the extent possible—this is sometimes asking a lot of a client experiencing a family law matter). If you are attending mediation in person with your attorney or mediator, your host should be prepared to have water, drinks, snacks, and meals available for you and your attorney. If you are going to be attending mediation on Zoom at home, you need to have everything on hand to meet your nutritional needs throughout the day. You may not feel hungry or want to eat during your mediation, but your brain needs you to consume food throughout the day to get through the dizzying work that often comes at the very end of a successful mediation.
Are you responsible for children, pets, or other household obligations throughout the day? If so, you need to make arrangements in advance for those things to be handled without your direct involvement. Your complete participation for the entire day of mediation will be expected, though there may be lulls when the mediator is not in your room.
If you are mediating from your home on Zoom—is everyone else you may share a home with aware you will be totally unavailable on the day of mediation? If you are mediating child-related matters, the child at interest in your case cannot be at home with you while you mediate.
Most importantly, as addressed above in #2, be prepared to be flexible. When your mindset going into mediation is that you are ready to work toward solutions you may never have considered, your case is already more likely to be resolved. *Remember: 100% of the offers sent to the other side or accepted require your approval. Though you will have the guidance of your experienced family law attorney and possibly also some helpful settlement input from the mediator, you are the only person who can authorize action.
Follow along for more advice and insight.