ABOUT TO MEDIATE?...

HERE ARE SOME THINGS TO THINK ABOUT

• If you’re about to enter mediation, the odds are your emotions include upset, anger, disappointment and probably several others. If it helps, the other person is probably in the same position although perhaps showing it in very different ways. You obviously don’t agree on everything or you wouldn’t be in mediation in the first place. You each understand each other’s circumstances and emotions better than you’ve probably been willing to admit.

• The success of mediation depends on complete and honest disclosure of relevant information and documents to each other and to the mediator. This includes providing all information and documents that usually would be available through the discovery process in a legal proceeding. If you fail to make such full disclosure, a court might rule later that the agreement resulting from mediation is not binding.

• Accusations only hinder the process and are not relevant to the issues to be discussed in mediation. Leave fault and blame aside. The focus of mediation is on the future, not the past.

• Accept responsibility for yourself. State what you want and need, and include your intent, reasons and feelings. Don’t try to speak for the other person.

• Go into the mediation prepared to be respectful and courteous to the mediator and the other party. This is not the place to “get even.” It may be the place to get things “off your chest,” but respectfully.

• Sometimes, the mediator will meet with the parties separately in a “caucus” to clarify issues. Usually, the mediator will identify those times, but you can also let everyone know when you feel a caucus would be helpful. Things said during the caucus are confidential and cannot be reported to any other party without the permission of the party in caucus.

• Most matters are complicated and there are many issues and sub-issues that will need resolution. As you discuss concerns, treat “agreements” and “compromises” as “written in sand” until you resolve everything. It will be easier to negotiate with confidence if you know you haven’t agreed to be bound to anything until you agree to everything.

• Consider dressing comfortably. Mediation is hard work!

• Communications with the mediator about issues under negotiation should be in the presence of all participants. Don’t contact the mediator separately to discuss substantive issues, although you can certainly contact the mediator if you need clarification of your next appointment time or of information needed for the next appointment.

• Mediation does not replace the need for counselors or psychotherapists.

• Consider how your attorney will be involved through this mediation. Take a look at Resolution Point’s handout “Don’t Forget Your Attorney” for some guidance.

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