We have all heard the Benjamin Franklin quote, “failing to prepare is preparing to fail” (although I think he said it slightly different). This is how you should approach mediation. If you are not prepared to tackle the issues when you show up for mediation, you are wasting your time and that means money. On average, mediation will cost each party about $4 per minute. It is important to spend the time before mediation to minimize the $4/minute you spend at mediation. The only exception being that sometimes the other party is so aggressive or the parties are so far from reaching an agreement that you are essentially going to mediation just to check off the requirement and get into court as quickly as possible.
Below is a breakdown of what you should be doing at a MINIMUM to prepare for mediation on each issue:
Alimony – Make sure you have a good handle on your income and your spouse’s income. If you are both employed, this is easy. If a party is self-employed, then you will need a breakdown (preferably organized neatly in an excel spreadsheet) of all gross receipts minus only those expenses necessary to operate the business. You also need a good handle on each parties’ expenses. If you have not done initial disclosures with a financial declaration, discussing alimony will be a waste.
Child Custody – Custody is a much more subjective test. Often, there is little relevant to a custody determination that you and your spouse don’t already know. For that reason, preparing for mediation regarding custody is much more forward-looking. That is to say, consider what will happen if you don’t reach an agreement. What is the court most likely going to do? Will you have to pay for a custody evaluation?
Property – Property is the easiest in my opinion. First of all, don’t waste your money having your attorney deal with small issues such as plates, pans, cups, blankets, Christmas ornaments . . . you get the picture. If that is important to you, write your own list before mediation and give it to the other side so that these low-value assets can be addressed in minutes, not hours. For everything else of value, I like to do a marital estate spreadsheet. I make four rows (Description, Value, Client, Spouse). I then have a column for each asset worth more than $1,000. At the bottom, I have a total for each column. This allows me to make changes on the fly and figure out a property division that everyone can live with. Make sure you have a good handle on the value of your major assets, such as a home.
Retirement – Retirement accounts are almost always divided with each party taking ½ of the marital share. If it is a pension or other defined benefit plan, they are divided pursuant to Woodward. It is still a good idea to have a handle on these accounts at mediation because you can often use them as a negotiating tool.
Child Support – If you have already addressed alimony and child custody, child support requires virtually no additional planning. Just plug each party’s income and number of overnights with the children into the child support calculator and the number is generated.
Miscellaneous – All too often I have people come into my office who have been divorced for a year or less and are having problems. Usually, divorce attorneys can only plan for so much without having a decree of divorce that is 30+ pages long and exhausting to read. If you know that there are going to be issues with a particular aspect of co-parenting post-divorce (such as picking up the children on time) make sure to discuss this at mediation so that it can be addressed in the Decree.