Before you enter mediation, you need to discuss with your lawyer all the issues that will be discussed in mediation: what are the issues in your case; what are the marital assets/liabilities; what are your and your spouse’s separate property claims; alimony or spousal support; child issues (legal custody, physical custody, other child related matters); your settlement positions be-your initial settlement positions and your range of settlement options.
Your lawyer should explain how mediation works and what to expect-the logistics and the dynamics.
You need to gather and obtain from the other side all relevant financial documents that your lawyer will specify. You should gather all documents that are relevant to custody. You should bring your computer and/or all your documents to the mediation. You may show the documents to the mediator or to the other party (another strategic decision to discuss with your lawyer). Bring everything type of document to the mediation, including photos, videos, audio recordings that would help convince the mediator on the strength of your case.
You should write a detailed narrative of the marriage (the “War and Peace” of your marriage), your background, education, employment, history of the marriage, significant events during the marriage, current matters, financial issues, and children matters. You will send this narrative to the mediator before the mediation so he/she can come into the mediation knowing your side of the story. This is for the mediator’s eyes only and shall not be shared with the other side.
If your lawyer does not attend the mediation, he/she should be waiting in the wings. Your lawyer should schedule time during your mediation sessions to be available to talk to you by phone during the sessions. Your lawyer should discuss mediation before and immediately after each mediation session. You should take good notes during the mediation so that you can debrief your lawyer on everything that was said, specifically settlement proposals that were made, the mediator’s evaluation of the issues in the case.
Give much thought to what you want and why you want it. For example, on custody matters, be able to justify and argue all the reasons that what you want is in the children’s best interests.
If the other side is being unreasonable on various issues, talk to the mediator to get him/her to explain to the other side that he/she is being unreasonable, would not obtain the result in court and would spend a lot of money for nothing. Ask the mediator to assess the strengths and weaknesses of the other side’s and you case as to each issue.
You and your lawyer need to decide what information you will share to the mediator only and what information you will permit the mediator to share with the other side. You may want to show some but not all your cards or methodically hold back information until later in the mediation.
Remember, what is said in mediation is confidential. But the more information you reveal to the other side, the more he/she learns about your case and your evidence which can then be used in a court if the case goes to trial.
Discuss with your lawyer what you think the other side will tell the mediator about you and the weaknesses of your case. Be prepared in advance on how you will respond.
Discuss with your lawyer the questions and issues that are weaknesses of the other sides as well as the documentary evidence that undermines his/her case. Be prepared to show the mediator some or all of this documentation depending on your discussions with your lawyer.
Finally, don’t sign any agreement until your lawyer has read it.