Preparing for a Successful Divorce
Mediation: A Family Lawyer (and Paralegal)’s Guide
Our “Top Ten Suggestions” List
We offer the following “Top Ten Suggestions” as a guide to divorce professionals
(divorce lawyers and their family law paralegals) seeking to effectively
prepare for a successful mediation.
This list derives from our
observations and experience as former litigators and now
full-time Colorado divorce and family law
attorney-mediators.
We’ll
follow this Guide to (Divorce Mediation’s) Preparation with a link to download a
two page
Family Lawyer's
Mediation Preparation Outline and Critical Checklist
— designed to be
reprinted and included in your case files, if helpful.
Preparation's Critical Role in Family Law
and Divorce
Mediation Success
As true in mediation as in life
generally, “good fortune” seldom is accidental. More often,
success in mediation derives instead from the exceptional
preparation of participating lawyers and of their family law
paralegals. We repeatedly witness the concrete, positive
results reaped by those lawyers and their paralegals who
spend the time and effort to prepare effectively for
mediation.
Here, then, are our top ten suggestions
for lawyers and their paralegals to effectively
prepare divorce and family law cases for successful
mediation.
1. Where possible, obtain and review
documents, reports and information required to evaluate your
case properly, in advance of mediation.
Adequate
advance knowledge and information of essential facts
relevant to the issues at hand gives lawyers a distinct advantage in mediation.
It places them in the superior position to develop settlement
strategies, and evaluate settlement proposals of opposing
counsel.
Deferring mediation until both parties have had a
reasonable opportunity to conduct meaningful discovery is
generally prudent. (There are, of course, exceptional cases
in which beginning some dialogue in mediation — even in the
absence of complete discovery — may still make sense, to
reverse or halt an increasing polarization of the
non-communicating parties or even of their lawyers).
2. Provide opposing counsel adequate
documents, reports and information necessary for evaluation
of settlement proposals, both in advance of and during
mediation.
Mediation is most effective when
parties exchange ideas and if necessary, additional
information in support of them, not merely arguments.
Certainly, adherence to the discovery requirements of
Colorado's new divorce disclosure laws provides for
significant information exchange that will assist in lawyers
and paralegals’ preparation of the case for
an effective mediation. And, why give the other side an excuse to
waste time in mediation?
If there is discovery helpful for
opposing counsel to understand the issues of the case,
lawyers seeking to resolve cases in mediation forthrightly
disclose such information in the mediation, if not well in
advance. Of course there are exceptions, but the power
of candor and disclosure in moving a case to settlement in
mediation ordinarily greatly outweighs the element of
surprise at an expensive trial with an uncertain outcome.
3. Evaluate and get agreements
respecting whether the lawyers' attendance is helpful in your
particular case.
Especially in disputes between parties
with significant personal histories and emotional attachments (and thus,
in nearly all divorce or family law cases), evaluate
objectively whether the presence of the parties’ lawyers in mediation is advantageous. Just as isolation may
serve the ends of litigation, the parties’ direct
communication in the presence of a neutral (and thus without
lawyers) often results in agreements and settlement of
stalled disputes.
Effective mediation lawyers rarely employ
an inflexible rule (e.g., “I always attend mediation with my
client . . .”), rather they evaluate the importance of their
attendance on a case by case basis, and if necessary, secure
safeguards for their clients to address legitimate process
concerns.
4. Determine realistically who must be
present or available to resolve the case (and get agreements
in advance with the mediator and opposing counsel regarding
their attendance and any ground rules).
Surprises (“I've brought my new lover
to this mediation”) in this regard are not
helpful and delicate issues of privilege and waiver need to
be resolved in advance, but effective mediation always
requires an evaluation of who are the real decision-makers
in a case. If a party is unable or unwilling to commit to a
settlement without consulting a third party (for example, in
family cases, the familiar new spouse or paramour), the
participation of such third parties may be essential to
resolving the case.
Experienced mediators can assist
in designing boundaries for sometimes uncomfortable
arrangements, but if someone other than the parties holds
the true power “to make it happen,” effective lawyers do not
hesitate to identify this dynamic and insist on somehow
including the third party in the mediation.
5. Fully explain (and contrast with
litigation) the mediation process to the client.
Many parties arrive at mediation
without even a basic understanding of how mediation works
and how its process differs from litigation. Many clients
naturally fear any meeting with their spouse, former spouse
or co-parent, especially one scheduled and prepared for in
advance and with their lawyers attending. Lawyers and
paralegals can
remind their clients that the mediation process is informal and confidential, and
that the collaborative nature of the mediation process seeks
to afford a safe atmosphere to explore of a range of
possible solutions.
Effective mediation lawyers
(and thus, the supporting paralegals meeting with the client)
make clear to clients that mediation is not a debate and the
mediator’s role is not to decide who is right and who is
wrong, but rather to facilitate the discussion (and perhaps,
assisting the parties to “reality test.”).
Effective
mediation results from clients who to participate in the
mediation session and are encouraged to talk to the mediator
in a focused manner during the process about what is most
important, including how they feel about the situation and
what they need. Client participation invests clients in the
process, and allies them with the mediator as well as his or
her insight as to the “other party’s” interests — an
essential element in effective problem-solving.
6. Prioritize issues with the client
and prepare approaches to settlement.
Effective mediation preparation
involves discussion with clients about the realities of
economic or time constraints on mediation, and a
prioritization of the issues to address. A typical two hour
or even half day mediation session requires time (typically
in separate rooms for each party, where the mediation
includes lawyers) for introductions, for learning the
parties’ overview of concerns, and for issue identification
— even before actual problem solving can begin.
Effective
mediation preparation evaluates which issues can be more
readily resolved, and identify priorities for the mediation.
7. Discuss the weaknesses of your case
with the client as well as the range of possible or
potential outcomes in litigation.
Effective mediation lawyers, of course,
detail their candid evaluation of the case, including
potential pitfalls and weaknesses, with their client prior
to mediation. This entails comparing the range of possible
litigated outcomes (including counsel’s assessment of the
costs of trial and its preparation), to the range of
agreements which might be reached in mediation.
Skilled, experienced divorce and family
law mediators are not “gaming” the participants and deserve
both sides’ trust and candor. They work hard to create
new and creative options that can be honestly perceived as
in both parties’ interests.
8. Provide the mediator with essential
tools to understand the issues in the case — in advance of
the mediation.
Divorce and family law mediators are asked to assist both
parties (and their lawyers) see the realities of the case
and to achieve a negotiated result that meets their clients’
needs — often in the span of several hours and without the
months of study and learning the parties and their lawyers
have with the case facts and issues.
Effective lawyers recognize that for
the mediator to meet this objective, he or she needs
adequate relevant background information to understand the
case. Good mediators hugely appreciate a brief
written statement from the lawyers or paralegals (“mediation brief,” “position statement,”
“settlement memorandum” or “confidential letter”) that
identifies the parties and their history, summarizes the
facts, defines the issues, discusses the strengths and/or
weaknesses of the case, and briefly describes any other
information helpful in understanding the case (including
settlement discussions, prior rulings, and court status) –
even in notebook form.
Recognizing that economics may not
allow for an elaborate statement in every case, it is the
rare case that parties meet and pay for both lawyers and a
mediator that some effort in this regard — if only providing
copies of basic relevant documents — is not well justified.
Consider reviewing and using our
Mediation Preparation Checklist tool in preparing for your
divorce or family law mediation.
9. Examine your client’s emotional
needs and ready your client for the emotions of settlement
and of settlement discussions.
An often overlooked element of
preparation is helping clients become “comfortable” with
resolution of the case. Especially in divorce and family law
cases, clients may need some assistance (even formal
therapeutic intervention) in readying themselves emotionally
to release the conflict. Mediation may materially advance
this passage as well, especially with lawyers allowing
appropriate time in the mediation for the client to express
his or her personal interests in the dispute and with the
mediator acknowledging and “hearing” these concerns. At the
same time, effective mediation lawyers prepare clients on
the importance, at some early point in the mediation
process, of moving past emotions and adopting a more
business-like perspective in evaluating settlement options.
In mediation not attended by lawyers,
effective mediation preparation stresses to clients the
importance of their language there, and how things are said
in mediation will contribute to, or deter from, the
likelihood of resolving the case. (Clients often need to
hear — repeatedly — that personal attacks and inflammatory
comments as well as offensive, non-verbal gestures invite
defensiveness and promote impasse.)
10. Remind your client (and sure, your
supervising attorney!) to listen in mediation, and to
consider new options and the other side’s point of view with
your client.
Effective mediation preparation helps
clients see the mediation as an opportunity to learn more
about the interests of the other side and hopefully new
alternatives to settlement that address both parties’
interests. Helping clients prepare to listen actively in
order to determine how the other side has been affected by
the dispute, how they define the problem, what they regard
as their most important interests and what is required to
resolve the case can allow for important insights that
afford the crafting of a new but mutually beneficial
approach to settlement.
Conclusion
The realities of the private practice
of divorce and family law (including time and resource constraints
in many cases) often interfere with the opportunity to adequately prepare for
mediation.
Those lawyers who are successful in mediation
(and thus, their paralegals!), however, almost always make
time for preparation that is on par with that of their
preparation for trial. The positive effect of advance work
such as outlined in these ten suggestions is consistently
observed in the success of their mediation experiences as
well as the satisfaction of their clients.
Family Law & Divorce Mediation Preparation
Outline & Critical Checklist
This checklist is designed for divorce lawyers and their
paralegals’ use — to be reprinted and included in your case
files.
(If
helpful, see our complete instructions to using Acrobat®’s
free software tools.)
See also our article,
An Overview of Divorce Mediation, For Family Law Paralegals,
describing mediation and discussing the special opportunities for family law paralegals in positively shaping its outcome.
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