PREPARING FOR MEDIATION

GATHERING DOCUMENTATION

Depending on the style of mediation, you may be required to bring documentation to your mediation.  In another link we provide information on how to prepare your paperwork for mediation.  It depends on what the mediator requires.  The best way to prepare for  mediation is to ask the mediator what you will be required to bring.  Some mediators require the completion of worksheets.  Some require you to bring in bank statements, W-2, and related paperwork, Some require “Opening Statements”, some mediators do not want to see information beforehand.  In our firm, we do provide paperwork for completion prior to the first mediation session.

CLEARING YOUR HEAD TO PREPARE FOR MEDIATION

A week before the mediation (if time permits) sit down with a notebook and a quiet space and ask and answer for yourself the following questions (in writing):

  1. What are the main issues of concern to you? What do you think are the main issues of concern to the other party?
  2. What are your goals for the mediation? What do you think are the goals of the other party?
  3. Are there any key players besides you? If so, will these people be at the mediation? If not, can you find out if they are accessible by phone?
  4. Are there any difficulties you will have to overcome in order to get a settlement? What are these hurdles? Can you think of any possibilities for getting over these hurdles?
  5. Do you have any research of homework you need to do to be better prepared for your first session? This includes talking to people, gathering information, documents, researching online, etc.
  6. Is there anything you need to help you participate in the process? i.e. do you need to bring a friend or family member to wait with you outside, do you need to exercise before the session, etc.? (see below with “What to Bring”)
  7. Do you have an attorney? If yes, did you speak with your attorney about their role in the mediation? Does the other party have legal counsel?

During the week before the mediation, think about what you wrote down.  When new thoughts or issues arise, add them to your notebook. The day before your mediation, review your notes and add any further information.

REQUESTING AND REVIEWING MEDIATOR DOCUMENTATION

Mediators have their own “Agreement to Mediate” documents they require you to sign.  This agreement is not always provided in advance.  There are several other questions to ask along the same vein..

Q: Are there any clauses or paragraphs that the mediator always inserts in their mediation agreements?  If so, request to see these clauses in advance so you can review them.

MISCELLANEOUS QUESTIONS TO PREPARE FOR YOUR FIRST SESSION

  1. Ask if parking be paid for, where parking is available and what to expect.
  2. Ask if there anything you need to know specifically about directions, or security getting in and out of the building. Ask about safety issues if mediating after work.
  3. Ask if mediation is intended to be formal or informal.  Ask about the temperature in the room.

CONFLICT OF INTEREST, BIAS, OR PREJUDICE ON THE PART OF THE MEDIATOR

Mediators that also have law degrees have ethical duties whose violations carry severe penalties.  Even so, not all mediator/attorneys disclose all information prior to mediating.  The “Agreement to Mediate”  often limits the mediator’s liability so it’s VERY important you get all the behind the scenes facts.

Q: Has the mediator represented the other party in a legal matter? Has the mediator ever worked with the other party’s lawyer in any legal issue, business transaction?  Does the mediator have any personal, religious or financial affiliations with the other party?  With the other party’s attorney?

If the mediator says they have no association whatsoever, you should get that in writing because mediation is confidential.  If the mediator says yes, then you should also have the mediator provide you with written confirmation.  Your consent to mediation should occur after they have disclosed exactly what the relationship is, you sign a consent form, and you make a conscious decision that you believe this mediator’s prior associations with party(s)’ or party(s)’ lawyers is comfortable for you.