CHECKLIST FOR PREPARATION OF DIVORCE CLIENTS FOR MEDIATION
Mediation is a means of resolving your case without going to court to litigate. Its success rate is about 90% - astoundingly high. It is a process in which both parties and their attorneys (if either or both of the parties in a divorce are represented by an attorney) meet with a neutral, unbiased
Checklist of Tips for Clients in Preparation for Divorce Mediation - Page 11. Remind client what mediation is-attorney assisted settlement conference.
2. Educate client as to the format used by the mediator, the possibility of a
joint session, private caucuses, and shuttle diplomacy. Tell your client that mediation is not the day or time for posturing!
3. Prepare client for lawyer/lawyer, lawyer/mediator conference.
4. Review benefits of mediation, e.g. agreements can be reached in mediation
that are not available in court (manage tax consequences, alimony).
5. Personalize the mediator including qualifications, experience, and favored
6. Review the mediator's commitment to neutrality and confidentiality.
7. Remind the client that mediation is a non-binding process, unless or until the
mediated settlement agreement is signed.
8. Make sure your client knows where to go and insist on punctuality.
9. Let the client know that the process works only if given sufficient time.
Encourage babysitting arrangements and the like to be made in advance.
10. Discuss positives and negatives of the client bringing a friend or family
member. Let the client know that an individual who is harmful to the process may be asked to leave.
11. Review the issues in the case. This discussion should be comprehensive so
that you are certain that your file is mediation-ready.
12. Discuss with your client the preparation of a first offer to be presented at
13. A review of the issues should lead directly into a specific discussion of the
strengths and weaknesses of their case. Include factual and legal
14. Try' to provide your client with a range of outcomes. Clients quickly gather
perspective in their case if they can see the distance between Best Case Scenario and Worst Case Scenario.
15. Be fair with the client about attorneys fees, expenses and time to trial when
making the strength/weakness analysis and discussing outcomes.
16. Discuss with your client what their secret expectation, fears, and needs are.
This problem often comes up the first time in mediation.
17. Ask your client to evaluate for you what the other side expects, fears, and
Checklist of Tips for Clients in Preparation for Divorce Mediation - Page 218. Prepare the client for some of the more obvious negotiating techniques:
a. "Either/or" offers. Explain that sometimes these are hard to evaluate.
Usually these offers contain hidden traps and hidden jewels. Let the
client know that the format of this type of offer can be ignored if necessary.
b. The "high offer" offer. Let the client know that you can recognize an
offer that is totally unreasonable and not to be alarmed by same.
c. No offer. Advise the client not to panic. This is probably going to be
the mediator's problem. Despite all wisdom to the contrary, we
sometimes bid against ourselves.
d. The walk-out. It happens. Do not let this take your client by surprise.
Let the client know that there may be courthouse remedies if the
other sides' behavior is extreme.
19. Discuss with your client the need to bring updated bank account statements
and other updated financial records (mention the benefits of bringing last
minute printouts from the internet of financial information).
20. Discuss the "trunk rule" of bringing all financial documents to the mediation
with those documents to be left in the trunk of the client's car so that if those
documents are needed, they will be accessible at the mediation.
21. Discuss the dynamics of reaching settlement and the nature and enforcement
of a Mediated Settlement Agreement.
22. Advise your client that they will be called upon to carefully read the
Mediated Settlement Agreement because this agreement, if signed, is
23. Let your client know that reducing the "agreement" to writing is a .vitally
important aspect of the mediation and will take time. This is the all-important
road map for the divorce decree.
24. Remind your client that the MSA is not the final document in their case and
the MSA is a guideline. After the MSA is signed, there will be additional closing documents needed before the divorce process can be completed including: Final Decree of Divorce, Agreement Incident to Divorce, Employers Order to Withhold, Special Warranty Deed, Deed of Trust to Secure Assumption, etc.
25. Discuss with the client the mediator fee and remind the client to bring a
check payable to the mediator
NOTE: Originally prepared by Mediator Coye Conner and modified by Judge Sol Casseb and further
modified by Charles Hardy 3-23-17.