Preparing for Mediation

A mediation is only as good as the parties’ preparation. This means that in order for mediation to work, you need to spend some time beforehand outlining what the issues are, what your ideal resolution of each issue would be, and where you are willing to consider a compromise.  The outlines below are intended to get you thinking about issues you may need to address in your mediation; they are not intended to cover everything, they are simply a starting point for you to work from.

A Guide to the Mediation Process

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Types of Cases I Mediate

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Preparing to mediate your divorce or family law case

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In order for your mediation to be a success, you need to spend some time beforehand figuring out

  • What the issues are (i.e., what needs to be mediated);
  • What your ideal resolution would be for each issue; and
  • What you are possibly willing to compromise on.

Depending on the issue, you should also think about what you would want to happen if something goes wrong in the future.  (For example:  You may agree that one party gets the house and has to refinance it within 3 years.  But what should happen if they don’t do the refinance within the agreed-upon timeframe?)

The following is intended to get you thinking about issues you may need to address in your mediation; it is not intended to cover everything, it is simply a starting point.

Property

   Real Estate

  • Appraised value? Assessed value?
  • Mortgage:
    • Who’s going to pay the mortgage?
    • Will there be a refinance or assumption? When?
    • What happens if the person who’s supposed to refi doesn’t do it?
    • If the house is going to be sold, how are the mortgage and related expenses going to be paid until the house sells?

   Accounts

  • Bank accounts (any online accounts)
  • Investment accounts

   Pensions, retirement accounts, IRAs

  • 401(k)s
  • Pensions
  • Is there the possibility of survivorship benefits on a retirement?
  • Are there any loans outstanding against any retirement accounts?

   Personal property

  • Cars, trucks (is there a loan, or is it paid off?)
  • Boats, RVs, other vehicles (again—is there a loan, or is it paid off?)
  • Furniture (are there any items that were inherited, or gifts? Are there any items of particularly sentimental value to either party?)
  • Family photos (are they digital, and easily copied?)
  • Jewelry
  • Collectibles
  • Tools

 Debts, liabilities

  • Mortgage:
    • Who’s going to pay the mortgage?
    • Will there be a refinance or assumption? When?
    • What happens if the person who’s supposed to refi doesn’t do it?
    • If the house is going to be sold, how are the mortgage and related expenses going to be paid until the house sells?
  • Car loans
  • Credit cards
  • Student loans
  • Other debt (Are there any private loans? Other debts?)

 

Parenting of Children

   Residential schedule/parenting plan

  • Fill out the state pattern form and think about everything it asks
  • Then think about what else you might need to address that isn’t in the form
    • Travel out of state (or out of the country)?
    • Exposure to cigarette smoke?
    • What happens if you need to change the schedule?

   Child support

  • Again, go through the state pattern form and the worksheets and fill them out
  • Then think about what else you might need to include that isn’t in the form
    • Do you have expenses for private school, tutors, special expenses?
    • What about sports?
    • Driver’s education?
    • How soon after an expense is incurred should the bill be sent to the other parent? And how long does that parent then have to pay their share?
    • Do you want to think about college/post-secondary education expenses now?

Preparing to mediate your guardianship or non-family law case

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When preparing to mediate your guardianship or non-family law case, you need to spend some time beforehand figuring out

  • What the issues are (i.e., what needs to be mediated);
  • What your ideal resolution would be for each issue; and
  • What you are possibly willing to compromise on.

Depending on the issue, you should also think about what you would want to happen if something goes wrong in the future.  (For example:  You may agree that one person is going to handle Mom’s medical decisions and another person is going to handle her finances.  But what should happen if the person with medical decision authority thinks Mom should live in a particular facility, but the person in charge of the finances thinks it’s too expensive?)

The following is intended to get you thinking about issues you may need to address in your mediation; it is not intended to cover everything, it is simply a starting point.

Guardianships

  • Who’s going to be the guardian of the person?
  • Who’s going to be the guardian of the estate?
  • Should the guardianship be limited in any way?
  • If the kids or family don’t all get along, what’s the “visitation” schedule going to be?  Do you need something as formal as a “residential schedule”?
  • How are holidays going to be handled? Will one person have priority for the same holidays every year, or will you rotate?
  • How will people communicate?
  • Should the guardian consult with anyone before making certain types of decisions? If so, what types of decisions, and who should be consulted?
  • What if the house needs to be sold to pay for care needs? Should the kids be given the first chance to buy it?  If so, how will the proposed sale price be determined and presented to the court for approval?  And what if more than one person wants to buy the home?
  • What if personal property/furnishings need to be sold or disposed of?
  • What if more than one person wants any particular item—how will the dispute be resolved?
  • Does the ward have any “special relationships” that need to be addressed? (Have they been involved in a long-term relationship?  Does everyone get along?  Are there any potential issues regarding claims of exploitation or abuse?)

Estates

  • Who’s going to get particular items?
  • What if more than one person wants any particular item—how will the dispute be resolved?
  • What if the house needs to be sold? Should the kids be given the first chance to buy it?  If so, how will the proposed sale price be determined?  And what if more than one person wants to buy the home?
  • Was the unmarried deceased involved in a long-term relationship? Does that person have any claims to property, furniture, mementos?  Was that person living in the deceased’s home?  If so, what happens to them now?
  • Did the deceased make any loans to someone who is inheriting from the estate? If so, how is that going to be addressed?
  • Is a beneficiary incapacitated (mental health issues, substance abuse, addiction)?  If so, does that person have a guardian or a guardian ad litem?  And how is their share of the estate to be handled?