Preparing for a Mediation – 4 Tips
As a Colorado divorce mediator, I am often asked for "preparing for mediation" tips. If you are in conflict with a spouse, business partner, family member, or neighbor, before you reach out to an attorney or head to the courthouse, consider mediation. Mediation is a flexible dispute resolution process in which a neutral third party facilitates a negotiation between parties to help them devise their own, mutually acceptable solutions. In many cases a judge will actually require it. I've written more extensively about what to expect in mediation here.
So, whether you’re heading into mediation because it’s court-ordered or because you want to avoid costly litigation, it’s worthwhile to learn some basic things about preparing for mediation. It will save you time, money, and increase your chances to find a lasting resolution.
1. Get your Ducks in a Row:
You may have been assigned a mediator, or you may need to find one on your own. If that is the case, spend some time researching: mediators, like everyone else, come in all different shapes and sizes. They have different approaches and different strengths. Once you’ve found a good fit, make sure to listen carefully to what they have to tell you about the mediation process. Read carefully the emails they send you! Most likely they will send you an Agreement to Mediate. Read that! If they ask you to send them forms or worksheets or return their emails, do it! All of this is designed to help you get the most out of your mediation. If you have forms (and if you’re involved in a court process, you will have forms), it can help to have them handy – especially if they’re already filled out. It can help orient you and talk knowledgably about your case. Reading and filling out forms is especially if you are preparing for divorce mediation!
These days almost all mediations occur on Zoom (or another online platform). Please make sure before your mediation that you have familiarized yourself with whatever program you are using, clear your calendar, clear your space, make sure there are no distractions. Even though you are doing your mediating at home, it helps to bring the same gravitas you would bring to a courthouse or a conference room to your at-home mediation.
If your court appearances are virtual, chances are they will be on WebEx. You can learn more about how the court wants you to prepare for that here.
2. Position vs. Interests
Your mediator will most likely ask you in advance to consider what is most important to you to resolve at mediation. Your position may be, “I want the kids 50/50 and nothing else.”). Your interest, however, reveals the underlying reasons, values or motivations for wanting 50/50 : “Equal parenting time is important to me because the kids are young and I want to make sure they have a balanced time with both parents to ensure healthy development.”
Position-based negotiation implies hard lines and unwillingness to compromise. Interest-based negotiation is more nuanced and seeks to uncover the reasoning behind the positions. It can be a more challenging way to approach mediation, but ultimately far more rewarding, because it allows parties to understand each other and find a resolution that therefore works better for both.
3. Stay open-minded and future-oriented
One of the things I find as a Colorado divorce mediator is that parties often come to mediation with a desire to rehash old grievances and outline in great detail what didn’t work in the past. They view it as an opportunity to prove they were right and why. When preparing clients for mediation, I try very hard in these instances to encourage them instead to look forward solutions that might work, rather than look back at those that didn’t. I encourage parties to come open-minded, if possible, and to look at the other side’s interest or position. You don’t have to agree with them, but understanding will ultimately help you both resolve your issues successfully.
4. Listen, Mirror, Validate
A great way to step out of your position in mediation, reduce tension, and gain points (this is not the right phrase!) is to listen carefully to the other party (deep breaths help) and mirror what they are saying. Chris Voss suggests repeating the last three words of what the other party says – it helps them feel heard and relaxes them. If that feels too weird, try validating them: say something like “It feels like you…” or “It seems like…”. You don’t have to agree with them to validate their feelings.
Believe me: as hard as this might be, it can really help!
Mediation can be a profound process and if you prepare yourself wisely, you will find that you’re more likely to come to an agreement that works for everyone. For more tips on conflict resolution, check out this blog.
If you are preparing for mediation for divorce court, county court, or small claims court, the Colorado Courts website has a host of information and is replete with every imaginable form.
Liz Merrill is the founder of Open Space Mediation and a passionate advocate for mediation as a means to help parties in conflict save money, deescalate, get closure, and get on with their lives.