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Mediation puts the decisions in your hands. That is its greatest strength and it means the quality of your agreement depends on how you prepare and how confident you are in what you want. These top ten dos and don’ts come from years of handling and negotiating thousands of settlements. We know what helps people reach agreements that last and what leads to agreements they later wish they could undo.
The Dos
1. Do bring your financial information.
You will make better decisions when the numbers are in front of you. Gather as much of the following as applies to your marriage before you agree to any settlement.
- Bank statements for every checking, savings, and money market account, whether joint or individual.
- Statements for every 401(k), 403(b), 457, IRA, Roth IRA, pension, and deferred compensation plan.
- Brokerage and investment account statements, including stock options, restricted stock, and employee stock purchase plans.
- Deeds, mortgage statements, and home equity line statements for your home, rental properties, vacation properties, and land.
- Titles and loan statements for cars, trucks, boats, RVs, trailers, and motorcycles.
- Credit card statements, personal loans, student loans, medical debt, and any money owed to family members.
- Business tax returns, profit and loss statements, balance sheets, and operating or partnership agreements for any business either of you owns.
- Personal tax returns for the last three years, recent pay stubs, and W-2 or 1099 forms.
- Life insurance policies with cash value, health savings accounts, and flexible spending accounts.
- Records of any inheritance, gift, or property that one of you owned before the marriage.
If you cannot get a document, write down what you know about the account, such as the account number, the name of the institution, the approximate balance, and whose name it is in. You will need to discuss how to get the documents. If you can’t get it, most likely your spouse can.
2. Do decide what matters most to you before you arrive.
Know your priorities before mediation begins. Make a short list of the outcomes you most want, the outcomes you can accept, and the outcomes you will not accept. When you know which issues matter most you can trade on the issues that matter less without losing what you really care about.
3. Do ask for a break or a private conversation with the mediator.
You can stop the conversation with the mediator whenever you need to. You can ask for a break to step outside, call someone, review a document or get a coffee or drink of water.
4. Do make every agreement specific. Details Matter.
A specific agreement is an enforceable agreement. Vague terms such as “reasonable parenting time” or “we will split the bills” are not acceptable because they cannot be enforced. Each term should say who does what, how much, by what date, and through what method. If a house will be sold, the agreement should say who lists it, how the price is set, who pays the mortgage until it closes, and how the proceeds are divided. If something does not happen on time, the agreement should say what happens next.
5. Understand the agreement before you sign.
Read the entire agreement before you sign it, including the parts you think you already understand. A written agreement signed by the parties is valid and binding under Ariz. R. Fam. Law P. 69(a)(1). Once you sign, the agreement is presumed valid, and the person who challenges it carries the burden of proving a defect. Ariz. R. Fam. Law P. 69(c).
The Don’ts Of Mediation
6. Do not agree to mediate in the same room as your spouse.
I know some mediators allow this but it is not a good idea. Your stress levels go up, it is harder to think clearly and you may not be able to say what you want to say and advocate for yourself. This sounds like a better idea than it actually is in practice.
7. Don’t settle when you are too tired to think.
Stop when you are too tired to think clearly. Long sessions can stretch late into the day, and the final hours are when people agree to terms they would never accept in the morning. If you are worn out, say so, and end the session and schedule another time. Do not let anyone force you to keep going. Write a summary of the negotiations so you can pick up where you left off.
8. Don’t let anyone rush you into agreements or into signing documents.
Take the time you need. No one, including your spouse or the mediator, can require you to agree to something on the spot. You can ask for a copy of the draft to take home, review it overnight, and return with questions or changes. If someone tells you an offer expires at the end of the day, you can still decline to sign until you have reviewed it. A fair offer today is usually still a fair offer tomorrow.
9. Don’t let the mediator give you legal advice.
Some mediators should not explain the law to you if they are not Arizona attorneys. Non attorneys might not really know what is going on in the courts or how the judges are handling a certain type of case. Good mediation advice comes from comparing possible settlement postures with the reality of court.
10. Don’t agree to anything a court would not make you do.
Know what a court would order before you agree to give more. If a proposal asks you to give up your share of a retirement account, pay a debt that belongs to your spouse alone, pay support above the guideline amount, or give up parenting time a court would likely award, stop and compare it with what a court would do. You are free to agree to more than a court would order, but that should be a choice you make deliberately and with full knowledge, never one you make because you did not know the difference. And the other side to that is to never waive an issue without the details of what you are waiving.
Talk to Tali
Best Law Firm offers mediation, divorce coaching, document preparation, limited scope representation, attorney review, Rule 69 agreements, and decree drafting. Tali handles every new client consultation. You can schedule your consultation with Tali at bestlawaz.com/talk-to-tali.
