Pre-Mediation Disclosures

Imagine if you could turn one hour of your time before the mediation into a savings worth hundreds of dollars, while simultaneously increasing your chance of success, and protecting you from legal and physical jeopardy. Today I will share with you how to do just that. 

Welcome! Today I show you one more step you can take to get more value out of your mediation. You know, if you think about how much each of these little steps add up to, it can really amount to a small fortune. And that is the reason this podcast exists!

Pre-Mediation Disclosures are an essential, and possibly a court ordered, part of a successful Mediation. There are typically two types of Pre-Mediation Disclosures. Financial Disclosures and Mediation Topics Disclosures. They can also be called Confidential Pre-Mediation Disclosures, and the addition of that word Confidential is significant and we will talk more about that later.

If there is anything either Party is planning to introduce into mediation both parties should first submit it to the mediator as the mediator typically does not permit such material or exhibits to be introduced into the mediation without first reviewing it. This keeps the mediator ahead of the conversation and prevents a party from feeling ambushed during the mediation.

Now Let’s take a closer look at the two types of disclosures and how they are typically submitted to the Mediator.

Pre-Mediation Disclosures, or Confidential Pre-Mediation Disclosures, are broad terms to describe the submission of information to the Mediator prior to the Mediation and can include financial disclosures, or not. Most commonly these disclosures contain requests for background information for the mediator and will usually contain the following elements:
-What Topics/Issues do you need to address in Mediation?
-Why has this Topic/Issue come up?
-What issues does this Topic/Issue create or will create if not resolved.
-What is the status with the Court on these topics.
-Is the Mediation Court Ordered? When are the deadlines? And provide a copy of the Court Order to Mediate.
-Prioritize your Topics/Issues.
-What are you willing to contribute or offer in order to achieve your goals in mediation?
….and there could be more and different questions or requests as the Mediator sees fit.

If there is any Court or other agency involvement the Mediator should see that information as well. This can include the outstanding Child Support Arrearage amount from Child Support agency. In Colorado that is the Family Support Registry. If there is an existing Parenting Plan, Court Order, etc then the Mediator should see these and become familiar with them prior to the actual mediation. You don’t want to pay your Mediator at the top of the mediation to start reading through your background information. You would rather pay them to read it all prior to the mediation where they won’t be constantly interrupted by the other Party who wants to “Clarify” things. It’s also painful to be aware of the billing timer clicking off money while you sit there and watch the Mediator read. Do it before.

The other type of Disclosure can be called a Financial Pre-Mediation Disclosure and these are typically only focused on things like tax returns, proof of income, bills, statements, etc that are going to be referenced in the discussion or resolution of any mediation topics referred to the mediation. For example for mediations that review child support I always ask for last three years tax returns, current last few paystubs, proof of child care expenses, if there are any, health insurance premiums, etc.

Let’s talk about Confidentiality. Because you are submitting some information that is critical to the mediation such as what you might be willing to offer, or what your thoughts are about the other Party’s issues, you want to make sure the disclosures are going to be kept between you and the mediator when you get into the session. If the request does not have the word “Confidential” in it, and even if it does, you should confirm with the Mediator that the information you provide is privileged and should not be shared. Some of the information may not be able to remain confidential without a special consideration For example, “I want you to keep my income confidential from the other party because I don’t want them to know how much money I make” is probably not going to be something you can expect. You should mark submitted information with something like “The following part is highly confidential and should not be shared with the other Party, without my prior consent.” This will help the mediator from “assuming” or “accidentally” releasing information. Anything not specifically flagged as confidential by the Mediator is fair game to bring up in a mediation. Therefore you should play an active role in making sure you and the Mediator understand what is, and is not, privileged information.

Financial disclosures are expected by the Court so Parties make informed decisions in the mediation and if the mediation is court ordered there is typically an order for the Parties to exchange financial disclosures seven days prior to the mediation. This is usually expected to be in the form of a Sworn Financial Statement, a court form that contains all the financial information for a Party. Also be aware that usually agreements filed with the Court may require worksheets, and other documents filed and visible to both parties that contain income figures, addresses and other information.

Exceptions to Full Disclosure and how to handle them. There are certain legitimate circumstances where the Parties do not wish to expose certain details to each other such as in cases where restraining orders are in place, or if there are complicated financial situations like other Trusts or contracts that hold their own confidentiality requirements. In cases like this I will have the Parties submit the information to me and I will share only the relevant parts of the financial information and confirm the disclosure has taken place, albeit through the proxy of the Mediator. This has been a way to make sure the incomes are confirmed without exposing the whole trust document to each other.

Cases where there are safety issues can be problematic where sharing a party’s paystub will expose where that party is working and could lead to potential safety concerns if shared. So actively working with the Mediator so they fully understand the confidentiality concerns are prior to the mediation is critical so you get the benefits of the disclosure and avoid any issues.

If you do have an attorney they can help you prepare a proper Pre-Mediation Disclosure for the mediator. Ask them about this if you have an attorney.

Usually the Mediator will request any desired Pre-Mediation Disclosures in advance of the mediation but if they don’t then you should inquire about it. You can discuss what the Mediator and you think about the value of Pre-Mediation Disclosures.

When I request Pre-Mediation Disclosures from clients I have them upload the information into a secure Client Portal so their sensitive information isn’t sent over email and subject to malicious interception by those shady folks out there. Work with your Mediator to address not only the content of the disclosures but also the method of transmission back and forth between you.

To summarize, by doing a thorough job of your disclosures you:
– Protect Sensitive Information from Accidental Disclosure.
– Contribute to the success of the mediation.
– Reduce the mediation fees.
– Secure the privacy of your personal information.
– Allow the mediator to get up to speed before the call so precious time isn’t spent getting on top of things at the start of the call.
– Help the mediator better understand where the conflicts are and how they affect each of you
– Help the mediator better understand where the potential agreements are
– Keep the Mediation compliant with Court Orders and deadlines.
– Keep the mediation on track so time isn’t wasted looking up information during the call or having to stop the mediation and reschedule for another session when the information can be found and shared  Tax Returns are a good example.

Many clients grumble at the notion of preparing a Pre-Mediation Disclosure, but they will grumble more if the mediation wastes hundreds of their dollars, leaks sensitive information, or the Mediator doesn’t have the right information to help guide you to a successful outcome.