Family lawyers learn quickly that preparation is the key to success when planning for depositions and trials. Preparation is also critical to maximizing your chances of success during mediation; use these tips to help you prepare yourself, your client, and your mediator for a successful family law mediation process.
By Randall Nichols, Family Lawyer
1. To Increase Your Chances for Successful Family Law Mediation, Choose Your Mediator Carefully
You may be familiar with the mediators under consideration, but take time to think carefully about the personalities involved in your case and whether a particular mediator would be effective in dealing with you and your client. Also, think about the potential interaction between the mediator and your opponent. Mediators come to their task with differing experience, talents, dispositions, and styles. The mediator who would be perfect for resolving a case involving complex assets and property division issues may or may not be the best person to mediate a case focused upon custody and support issues. It is worth your time to research the background of the mediator. It can also be very helpful to solicit the advice of colleagues who have participated in mediations with a particular mediator. Finally, be prepared for the possibility that your opposing counsel may not agree with you as to the optimal person to handle the mediation. As an attorney representing a client, I attempt to diffuse this issue by providing opposing counsel with a list of three mediators, any of whom would be acceptable to me and my client. I allow opposing counsel to pick from the three and, in virtually every case, one of the three is acceptable.
2. Present Your Case to Your Mediator Prior to Mediation
I have a law partner who is meticulous in his preparation for depositions. His philosophy is that a case may often be won or lost at the deposition stage. One reason is that a successful deposition – one for which you have thoroughly prepared – can enlighten the opposing side to the strengths and weaknesses of their case and push the matter toward settlement. In a similar way, preparing your mediator so that he or she can better understand your case can markedly increase the chances of success. You must give the mediator what he or she needs to be prepared. This means providing a precise position statement that makes clear your client’s positions, but which also acknowledges where the weaknesses of your case lie. Share with the mediator what you believe to be your client’s top priorities or goals and give him or her your assessment of what you believe to be reasonable and unreasonable demands and why. If relevant, send with the position statement relevant pleadings or legal authority. Also helpful are schedules of assets, liabilities, income, and expenses.
Your mediator can also be a facilitator prior to your mediation. If, for example, you feel you lack information that is essential to assessing the settlement offers to come (settlement is the goal after all), let the mediator know. There have certainly been occasions in which, as a mediator, I have contacted attorneys prior to mediation to obtain assurances that the needed information will be provided in a timely fashion.
3. The Parties’ State of Mind is Crucial
Many Southerners are familiar with the expression, “You’ve got to get your mind right.” This, of course, is an admonition to be sure you are in the right state of mind to address the task at hand. A mediation can only be successful if everyone is in the proper state of mind to proceed. At the beginning of each mediation, I ask each party to assure me they will do two things:
- Keep an open mind, and
- Be patient.
In exchange, I promise them I’ll do all I can to get their case resolved.
An open mind is essential because it accentuates the single greatest advantage mediation holds over litigation or other dispute resolution models – flexibility. Mediation provides the best forum for empowering the parties to have a significant impact upon the details of their post-divorce lives. The parties, between them, know everything there is to know about their circumstances. They know what will make their lives better or worse going forward. A trial court is limited in the knowledge it can be given about the parties and their issues. Time constraints, rules of evidence, and procedural bars prevent a trial judge from fine-tuning a judgment in the way the parties can craft an agreement. In my early years of practice, one of our domestic relations judges would give the following message to the parties prior to directing everyone to make efforts to settle their case:
“If the two of you work to resolve your case, you have the opportunity to be precise, as a surgeon uses a scalpel. If you put your case into my hands, I will do my best, but even my best effort will resemble more a butcher using a meat cleaver than a surgeon using a scalpel.”
Parties to mediation are not constrained by limiting factors. Mediation allows for creativity and the ability to adapt an agreement to the specific circumstances of your client’s case. Prepare your client for mediation positively. Be an advocate for the process. Make sure your client understands that, although mediation doesn’t always work, when it does, everyone wins. It has been my experience that parties who settle their cases are far less likely to suffer the ordeal of post-divorce disagreements, petitions, and return trips to court. I believe this is because each party obtains ownership of the provisions of the agreement to some extent. The parties may not like everything in a settlement agreement, but, unlike a judge’s decree at the end of a trial, it is not something imposed upon them unilaterally.
Patience is also very important because of what I call the “first law of mediation motion,” which is that the mediation process seldom gains traction in the first two to three hours. This initial period inevitably is consumed by the parties need to “vent” or to “explain.” While this part of the process may seem unproductive, it is often a necessary, cathartic process that allows each party to proceed with confidence that the mediator understands their case and, more importantly, their concerns, hopes, and dreams. Also, prepare your client for the likelihood that there be long periods of time the mediator spends with the opposing party. Reassure your client that this doesn’t mean a mediator is more sympathetic to one side or the other. The dynamics of each “round” of negotiation are different. Good, productive time can be had by going over with your client the status of the day – confirming what has been agreed to and what issues remain. One aspect of mediation that I believe is undervalued is the opportunity to regroup and reflect upon the issues at hand while the mediator is engaged with the opposing side.
4. Successful Family Law Mediation: Closing the Deal
Arrive at the mediation with the belief you will be successful. Be prepared to bring the negotiations to a close by having an agreement drafted and signed before the parties leave the mediation. If there has been an exchange of proposed agreements, bring them on your laptop or iPad. Alternatively, make a version available to the mediator for modification. It is not always possible, but if the parties can leave with an agreement – their agreement – that has been signed, the relief of finality can begin to sink in. At this point, you will have done a great service for your client and, in some cases, their children as well. You can also start planning to prepare for your next successful family law mediation.
Randall W. Nichols practices all aspects of family law litigation and mediates family law disputes as well at Massey, Stotser & Nichols in Birmingham, Alabama. He is the proud father of two children and the grateful husband of their mother. www.msnattorneys.com
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