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How to Prepare for Mediation

How to Prepare for Mediation

 

Mediation in Cumming Georgia divorce and family law cases is very similar as it is in other Georgia Courts.  So the following information applicable to cases in Cumming Georgia as well as throughout the rest of the state.  Once you have filed all of your initial paperwork, pleadings, or responses, and you have already started or finished the discovery process then your attorney will begin discuss with you the possibility of settling your case through mediation (also called Alternative Dispute Resolution – ADR). Addition information regarding mediation can be found at the Georgia Commission on Dispute Resolution website.

If this is an entirely new process for you then you may be unfamiliar with the procedures and rules of mediation, but that is okay. Even for veterans of ADR who are familiar with the process of mediation know that each new case is uniquely different and can therefore result in uniquely different unorthodox negotiations and may even require unorthodox negotiation tactics.

The best way to prepare for ADR is to know your case and to know the law. To make the mediation process go as smoothly as possible you need to anticipate anything that may be problematic in resolving your case. You should also know specifically what you want to achieve and prepare some items that both parties would benefit from and that you believe that the other party may agree to.

How to Prepare for Mediation:

1) Come to Mediation with Organized Documents

You should have all of the necessary documents required by law prior to the actual mediation and you should provide the other party a copy of all materials beforehand. In the state of Georgia there is a requirement that mandates that both parties must complete a Domestic Relations Financial Affidavit and submit it to the court as well as the other party before entering into mediation. Furthermore, you should have an organized outline and proof of any possible financial documents to authenticate your Domestic Relations Financial Affidavit. Documents that should be organized for verification may include: bank account information, mutual fund statements, brokerage account information, IRA / retirement fund documents, balances and statements of any banking accounts, and bills or other monthly payments like mortgages, home equity loans, credit cards, student loans, and car loans.

You should also have copies of all pleadings filed, statutes for case law that may be presented at trial, and organized and labeled copies of all evidence that may be presented at trial. Your presentation of case law and supplemental evidence may be presented by the other party to influence progressive negotiations. Having well organized documents will allow for you to access information readily and will prevent any unnecessary losses of time spent searching for documents.

2) Control your Emotions

It is common for mediation to insight emotion as offers may be made that infuriate one party or may demine or undermines another. However, it is important for you to control your emotions during the negotiation process. If you fail to control your emotions during the mediation process then the mediation can actually become a roadblock in the process. In order for your case to be herd by a superior or family court it will be necessary for you to complete some form of mediation and often times both parties find that mediation is more beneficial than going to court, where neither party may have the case resolved in their favor. If your emotions get the best of you then you may not be able to clearly negotiate and may forget to address important issues that should be resolved in the mediation process. In other words leave your emotions at the door when going into mediation and keep focused on your goal.

3) Be Prepared to Negotiate

You should know what you specifically intend to achieve from the mediation, but you should also be willing to understand and listen to what the other party hopes to achieve in the mediation process. You should avoid in negotiations arguments about the past as these actions cannot be changed and undermine the purpose of mediation which is to resolve issues to benefit future progression. Using mediation to discuss in detail unproductive history only stops the progress of negotiation as it hurt both party’s feelings and it waste time and money as you are essentially paying to argue when you could do that for free at another time, over the phone, text, email, or letter. Once you determine specifically what you want you should address it with your attorney and you should make a detailed list of exactly what you want and what you may be willing to agree to in terms of a legal consent agreement.

4) Make sure your Attorney Understands What is Important to You

You should make sure that your attorney is on the same page and knows exactly what you are intending to achieve. It is necessary in mediation to know your legal rights and it is necessary to know what specifically you can ask for or expect to receive if you intend to ask for the same thing at trial. You need to know beforehand if you and your attorney can work toward a common goal. If you realize that your attorney may not be willing to pursue the same goals that you desire in the mediation process or is unwilling to promote resolution then it is reasonable to seek alternative council that is more willing to represent your specific goals. You should be mindful to not allow for either your council or opposing council to talk you into an agreement against you or your family’s best interest or to agree to undermine legal rights that cannot be waived. To ensure that you and your attorney are on the same page you may want to email your attorney specifically what you want and why prior to your mediation and or have a phone or personal meeting with your attorney to discuss the case.

5) Come with a Planned Budget

If you are going to mediation to specifically request some sort of financial support; such as, alimony or child support then you should come to the mediation with a monetary monthly budget plan and should have copies of such plan for the mediator, opposing council, and the other party. Having this information available at mediation makes it possible for both parties to rationalize specifically what they need and the breakdown can assess what either party is willing to pay for via court obligation. You should base the budge you formulate on a realistic concrete budget compiled from bills, receipts, banking statements, credit statements, and your Domestic Relations Financial Affidavit.

6) Know your Legal Rights and Obligations

You need to know your case and your rights and obligations prior to going into your mediation. You should ask an experienced divorce and family law attorney relevant questions or have them assist you in finding case law that may support your claims and case. If you find specific case law that you may intend to present in the mediation to influence negotiations then you should ask your attorney if they believe that this case law is appropriate for your specific case. You should also be familiar with any obligations that you may legally be required to fulfill and not waste time fighting against obligations that will ultimately be fulfilled.

7) Confidentiality

You should also pay close attention that anything presented at mediation is confidential and cannot be used in court against you or to damage your reputation or case. Objections can be made at trial to materials that are disclosed by either party that reveal confidential information provided in mediation. However, this does not cross over to evidence presented at mediation as this information can be presented at trial and does not maintain the same protections as do commentary, settlement documents, or negotiation conversations. Confidentiality may also not be maintained in events in which crimes are unveiled during mediation or occur in the process of mediation. For example if one spouse confesses to a crime perpetrated against the other spouse during mediation or if the spouse reviles that the other spouse is guilty of a crime then the mediation should end and the crime in particular should be reported to the police. If any other crime resembling either extortion or blackmail is observed then the mediator should also terminate the mediation process and report the crime to the police and not withholding information due to confidentiality.

Mediation Tactics:

Other tactics (defined as: an action or strategy carefully planned to achieve a specific end.) for mediation are to remain open minded and not rule out any proposal without completely assessing its advantages to your situation. Even if you may not completely agree to the terms initially presented to you; you may still be able to modify the provided terms to meet halfway and find compromise that can benefit both parties. You should also try and treat the mediation situation as a business transaction derived from all emotion with a cordial and positive attitude. Do not attempt to work backwards once you find that you agree to a specific term. It is not uncommon for a spouse to have a change of heart on the negotiation process, especially if negotiations begin to sour.

However, if you begin to withdrawal negotiations after previously agreeing it may be perceived that your actions are taken in bad faith which may negatively impact your court outcome. Lastly, you should not attempt to give ultimatums and you should always attempt to make the first move. Making the first move demonstrates your confidence in the situation and demonstrates your openness to negotiations. On the other hand, ultimatums lead to limited negotiations and the eventual deterioration of productive conversation and agreement.

It is also important to understand that you will be given ample notice of any formal mediation sessions. However, it is not uncommon for the court to order the parties to hold an “informal mediation” before a temporary hearing will be head. Therefore, it is important to start preparing for mediation early in the event you are ordered by the court to mediate the same day your case is scheduled to be heard.

If you feel that you need the assistance of an experienced divorce and family law attorney for mediation, call us at 770-609-1247 to discuss how one of our attorneys can assist you.

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