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There seems to be truth in the old saying "You can't sell something to an uneducated buyer." Even though every individual entering into mediation wants to make the
"right" decision, sometimes more information is needed for this to happen. To prepare for mediation, it is important for the legal assistant to ask questions, review all
documents and stay current on the developments of the case. Keeping the case organized is critical. In a mediation, all individuals are key players and should voice their ideas and
concerns.
Selecting the Mediator, Time and Place: Before attending a mediation session, there is a great deal of preparation and organization that must take place. This can be done
by the legal assistant as part of the legal team. Many attorneys have a mediator they prefer or a mediator who has the expertise needed to conduct the mediation for a particular case.
After the attorney, the client and opposing attorney have selected a mediator, the legal assistant can begin in scheduling the mediation.
The date, time and place is important to
make sure all individuals can be in attendance and are comfortable and open to the mediation. It is important to always check with the clients to make sure they do not have a conflict
with the mediator, place and time of the mediation. Even though the mediation may be scheduled for a designated amount of time, be sure to allow time before and after. Clients may have
questions and concerns prior to and after a mediation which need to be addressed. Often clients are apprehensive before mediation, because most of the time it is their first experience
with the mediation process.
Identifying the Issues: It is important to identify the issues for mediation. At times there are several issues in a case which can be resolved between
the parties. In some instances, only particular issues in a case are taken to trial. These are the issues that are addressed in the mediation in an attempt to avoid the trial time and
cost of litigation.
Preparation for issues may vary. For example, custody and parenting time issues may be resolved without additional information. Even though the parties have a
genuine interest in doing what is best for their children, suggestions as to various forms of parenting time may be needed. The court provides the parenting time guidelines on their
website (http:\\courtlink.utcourts.gov) giving information as to the minimum parenting time, divorce education classes and many other topics of concern for parents. It may be a good idea
to provide a copy of the minimum parenting time to the parties for a "starting place." Several parenting time options suggested by one party can be summarized in separate
exhibits and provided to the opposing counsel (if in attendance) or to the opposing party. In this way, the options to which one party is in agreement is presented as a "starting
place" from which to either expand or detract.
In determining custody, it is difficult for this to be resolved if the parties are not in agreement. A custody evaluation is
usually done and with the additional information provided in the custody evaluation, the parties may want to return to mediation to discuss alternatives to determine what is the best
interest of their children. Again, the custody evaluation would be the "starting place" for the parties.
The division of marital assets and debts seems to be the topic of
mediation which may need more information and documentation to resolve. Each party may know more about a particular asset and debt and will need to share this information with the
opposing party. Once both parties are "educated" the decision and options may be easier to recognize, define and resolve.
Many times there are several individual issues
which may need to be addressed in mediation and cannot be resolved between the parties and their counsel. For example, retirement plans, stock options, bonuses, investment income,
business evaluations and tax options may need to be discussed at length in order to be resolved. Once the parties and their counsel are presented with the information in a mediation
setting and all are in agreement as to the facts submitted, the options to resolve the issue may be more clearly defined and may be resolved. At times there may need to be another
mediation session scheduled to continue with the issue after additional information and documentation has been determined to be needed.
Documentation/Education: As discussed above,
it is always a good idea to have a "starting place" in a written form or document. Even in the issue of visitation and custody, a plan should be presented from which to find new
options and ideas for resolution. There is always a beginning to every road and mediation is hopefully the resolution.
When a mediation is scheduled to determine and resolve the
division of marital assets and debts, a notebook is recommended. This notebook is similar to a trial notebook. A schedule is printed identifying the assets and debts in one column, the
Petitioner's column, the Respondent's column and a final column for notes and information regarding that particular asset or debt. The assets and debts should be numbered. Once the
schedule is completed, documentation should be indexed behind the particular asset or debt number verifying the value or debt as to the latest document or available information. The
schedule again becomes the "starting place" for the distribution of the assets and debts and the indexed documents provides the "education" necessary.
Prior to
the mediation, it may be advisable to print one schedule with the division as outlined by one party and print another schedule without the assignment of any asset or debt to a party. In
this way there is a "starting place" but also a blank schedule to use as a working draft. The notes and information column may be used to note additional information is needed
or the date of the document verifying the information presented. The schedule can be updated and produced as discussed with the use of a laptop computer. In this regard all parties can be
a part of producing the final product.
Participation: Mediators welcome the participation of everyone involved. Remember the mediator is the driver but the "starting
place" and information and documentation must come from that "educated buyer." If a case is to be settled during mediation, all facts and information as well as options and
alternatives must be known, discussed, and applied by the client and his/her attorney.
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