MenuNathalie Boutet, an experienced family law lawyer, accredited mediator and certified Family Enterprise Advisor™.
If you’re preparing for separation or divorce and have chosen the mediation process, here’s a useful checklist to help you prepare and make the most of this invaluable opportunity to settle without having to go to Court.
Remember, this is your life – so don’t rely solely on your lawyer to get everything ready for mediation. Use these three tips to get to know your case inside out, and address issues that the other person will undoubtedly bring up.
1) Organization is key
Having your documents categorized and organized will help you to stay in control during mediation. It will also save time and money if you’re able to share items you are referring to on the spot. However, be mindful that mediation is not like a trial where the judge will carefully review all documents you present. In mediation, we often address issues generally, because there is no time to go over all pieces of documents that each party has.
The reason why it’s so important to have all your documents organized is to help you quickly find and identify what you are looking for in case you need to quickly disprove what the other side is saying or help the mediator sort through various incompatible stories that may be shared during mediation.
Here are some quick tips on how to keep documents organized:
- Use an Excel document with tabs to organize all the facts chronologically, or by themes.
- Make references to the documents that support facts directly in your fact list so they are easy to find.
- Name and save the documents in an orderly fashion. For instance, in our office, we use this naming method: “year-month-day-name of document”, which would look like: 2022-09-26-Counsel email to Greg re child support arrears
- Alternatively, you can use the Tab system that lawyers frequently use, such as: Tab A-2022-05-01-Sworn Financial Statement Mary Smith
We also use sub-directories to help us to keep organized, such as: “Correspondence”, “Financial Statements”, “Budget Items”, or “Support Calculations”.
2. Get your brain ready
Being involved in a conflict may be destabilizing, time consuming, frustrating, expensive and scary.
When we’re in conflict, our brain works just as if we were being attacked by an animal, triggering the fight, flight or freeze response. When that happens, our ability to think and reason is diminished because our body is busy releasing adrenaline to make us more performant, or is sending more oxygen to our lungs so we can outrun our attacker. Our bodies are designed to diminish our executive functions (ability to think and reason) in favour of getting ready to fight or flight.
For this reason, don’t go to your meetings when you are close to the edge – easily triggered and unable to think straight.
Work with a coach or a therapist before an important meeting to process what is happening, how you feel about your current circumstances and the situation you are in. Train and teach yourself on how to maintain emotional balance.
This will be of invaluable assistance to you during the meetings when you interact with the person you are in conflict with, the person who will inevitably say things that will trigger you. The more you are in control of your emotions, the more alert you will be, and able to explain your point of view.
3) Know your BATNA: (Best alternative to a negotiated agreement if negotiations fail)
Based on the seminal book Getting to Yes: Negotiating Agreement Without Giving In, BATNA is your ‘best alternative to a negotiated agreement’ – the course of action you will pursue if the negotiations fail. This is an important exercise to help you decide when to walk away. Not doing this may have you reject offers that you should accept, or accept offers you should reject.
The Harvard Negotiation model suggests the following four steps to understand your BATNA:
List your alternatives: Think about all the alternatives available to you if your current negotiation ends in an impasse.
Evaluate your alternatives: Examine each option and calculate the value of pursuing each one.
Establish your BATNA: Choose a course of action that would have the highest expected value for you. Things to include in your analysis: your time off work, the cost of legal and professional fees, and the amount you may receive if you lose in court.
Calculate your reservation value: Now that you know your BATNA, calculate your reservation value—the lowest-valued deal you are willing to accept. If the value of the deal proposed to you is lower than your reservation value, you’ll be better off rejecting the offer and pursuing your BATNA. If the final offer is higher than your reservation value, you should accept it.
An awareness of your BATNA can give you the confidence you need to walk away from a subpar agreement.