Preparing for Mediation

There are lots of things you can do before your first session with the mediator to minimize the time (and money) you spend in mediation.

Understand the Mediation Process

If you haven’t already done so, you may want to check out the page on divorce mediation so you know what to expect. You need to know, for example, that mediation and arbitration are not the same thing. You need to know that your mediator won’t have any power to impose a settlement on either of you. The actual resolution would be up to the two of you.

You need to know that, in mediation, the focus is not on the mediator, or on your lawyers, but on the two of you. You’re in control. You get to decide whether you’re going to reach an agreement.

Gather and Organize Financial Information

It’s possible to begin the mediation sessions without bringing in any information, and in fact, most people begin this way. You will save time and money, however, if you begin assembling this information now:

  • Complete information on all assets and liabilities. For example, if there is a house, even if there is no intent to sell it, you will need to agree on a fair market value for the house, so you should gather whatever information will be helpful to you in understanding that (appraisals, sales of similar homes in your neighborhood, etc.). You should also know in whose name you own the house as well as the balance of all outstanding mortgages, any home equity lines of credit, and any outstanding liens attached to the house.
  • Capital Gains on the sale of your home are probably not an issue, as the result of the recent changes in the tax code. But for other real estate, you need to know several pieces of information, including the purchase price and the value today. If the real estate is depreciable, find out the value to which it has been depreciated.
  • Balances in your checking and savings accounts, stocks, mutual funds, retirement plans, as well as amounts owed on any outstanding loans. You also need to know for each qualified retirement plan how much of it will be taxable when you eventually pull out the money and start spending it. You need to know your basis in any stocks, which your broker or accountant can probably provide for you.
  • The value of all vehicles. You can use the Blue Book (which is actually a yellow book with blue writing), available at most banks, credit unions, and libraries. You’ll also need to know the balance owed on any loans related to the vehicles. In addition to cars, you’ll also need this information on any other vehicles, such as boats, trailers, and recreational vehicles.
  • The most recent three years of 1040 tax returns, both state and federal, together with all their attachments, including W-2’s. Also, you should take a recent typical pay stub showing current pay and deductions.

If either of you owns an interest in a business, it will take some special attention in mediation. Make sure you tell your mediator about it early on.

  • Information about other assets, including cash value life insurance, expected tax refunds, claims, frequent flyer miles, vacation timeshares, etc.
  • Information about your debts, including the balance owed, which of you is legally liable for the debt, the interest rate, and the minimum monthly payment.
  • You should go ahead and start thinking through your budget now. If both of you are prepared with an accurate line-by-line estimate of your monthly expenses, you will save time and money in mediation.
  • I encourage you to take to mediation three copies (one for the mediator and one for each of you) of all relevant documents, except that in the case of the 1040 and other documents that are lengthy and only partially relevant, one copy will probably be enough.

Work Through As Much Crud as Possible

I tell my clients that my office is the best place to fight, and it is. Your mediator is a professional and well able to keep the sessions on task, and your children are far, far away. That having been said, however, the more you and your spouse have already worked through your emotional divorce, the more efficiently you will use your time in mediation, and the more likely you will reach a mutually satisfactory resolution of your divorce issues.

Avoid Proposals

We know from statistical research that the most effective mediators concentrate not on reconciling positions but on the goals of the parties. Lawyers love proposals. They love to formulate proposals, deliver proposals, counter-propose proposals, and reject proposals.

Proposals are a frustratingly cumbersome way to get to a resolution. My experience is that a proposal from either party immediately pushes both parties into positional defense. It’s not pretty.

Rather than taking your proposal to mediation, I’d like to see you take a good clear understanding of your goals. If you trust the mediation process, the process itself will help both of you find a way to accomplish as many of your goals as possible. You can work out the specific provisions in the mediation sessions themselves.

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