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 noncommunicating 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 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.
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, nonverbal 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.
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 10 suggestions is consistently observed in the success of their mediation experiences as well as the satisfaction of their clients.
Family Law And Divorce Mediation Preparation Outline And Critical Checklist