Editor’s Note: This article, authored by Elisabeth Edwards, appeared on October 18, 2017 on the Family Law News Tip of the Week on the Indianapolis Bar website.
Most family law cases will end up seeing the inside of a mediator’s office at some point. Love it or hate it, mediation is required in many counties and can even be a prerequisite to getting a trial date. Whether you have a full day mediation scheduled or are taking a case to a Marion County Modest Means mediation with a three-hour limit, there are ways to make it more likely that your client’s case will settle. Having mediated more than a few cases, I offer the following advice on making mediation date more productive and valuable for the benefit of your client.
- Clue In Your Mediator. Send your mediator something that resembles a Confidential Mediation Statement. While you don’t have to put together a multi-page statement with 12 attachments including the full 62-page GAL report (Please don’t send that!), sending some sort of statement as to what’s going on with the case will be helpful. Or if you don’t have time (or your client can’t afford anything fancy), call your mediator! A 5-minute or less telephone call can make all the difference. The most valuable information you can give your mediator includes the basic legal issues and the “elephants in the room” that are not necessarily legal issues or facts that will be relevant at hearing, but which need to be addressed at mediation. If you have a client with whom you have been “keeping it real” about his chances at court and he refuses to listen to you, let your mediator know that. If there are allegations of an affair and there are issues of shame, denial, anger and hurt, that information is important to share. It helps your mediator understand the dynamics of the parties and the mediator can structure negotiations accordingly.
- Do Some Basic Prep Work. Show up to mediation ready to address the issues that are being mediated. While that seems obvious, it is actually common to see attorneys come to mediate a child support modification without paystubs, tax returns or any information about income for their clients. It’s also common in divorce mediation to find that neither attorney has made a basic list or spreadsheet of the assets and debts to be divided. Your mediator doesn’t necessarily mind being the conduit for information if something was overlooked or has changed. However, when you spend the first 4 hours of a full-day mediation just trying to pull together enough information to calculate child support or create a list of marital assets, there is less time to talk settlement. These are the cases where clients end up upset that they “wasted their day” and disgruntled that they still have to pay their attorney and the mediator. Carve out time ahead of your mediation to make sure the case is properly worked and that your opposing counsel has what he/she needs to move the case forward.
- Don’t Just Pencil Mediation on Your Calendar. Treat mediation like you would a full-day trial. You and your clients need to block the full day and be prepared to stay and work. Everyone has experienced the havoc of a last-minute emergency hearing or other unknowable event. However, if you are leaving a hearing or other appointment on your calendar for a day that your client, the other party, the other attorney and the mediator have all blocked to work on this case, you will quickly get a reputation you don’t want. If something last minute and unmovable comes up on your calendar, RESCHEDULE your mediation. It’s that simple. Treating mediation seriously sends the message to your client that it is indeed serious. When you spring on your mediator at noon that you suddenly have to leave at 12:30 P.M., there is a good chance that your client’s case will not settle. This is unfortunate for your client who took the day off work to be there. Springing a “scheduling conflict” on everyone the day of mediation is, frankly, rude and disrespectful. It makes you look disorganized and gives your client the impression that her case is a low priority for you.
- Set Your Client’s Expectations. Your mediator is prepared to do some “reality testing” with your client, but that should not be the first time your client is hearing how absolutely unreasonable his position is and how the possible legal outcomes include things that are very undesirable. Don’t set up your mediator to be the sledgehammer on your client all day because you have not reviewed the scope of possible outcomes before walking in the door. This causes your client to think your mediator is being positional, when your mediator is merely trying to move both parties to a place somewhere in the middle. Unqualified victory at trial is promised to no one, and sometimes your client’s worst day in court is something with which she can’t live. Educate her before you walk into mediation so that she is not unreasonably stuck before even starting.
- Start Typing. Just because there is general agreement as to all the issues, the mediation is not over. You still need to put all of the agreed-upon terms into an agreement that the court will accept. If possible, take a laptop and a skeleton of an agreement to the mediation. Throughout the day, update the agreement as terms are agreed upon. Let’s face it, mediation generally contains sufficient down time to get this done while the mediator is in the other room. When full agreement is reached, email a draft agreement to the mediator or hand over a thumb drive. This simple step will save lots of time at the end of the day. Since time is money in mediation, your client will appreciate the effort.
While not all mediations result in settlement, some cases which should settle don’t settle because of the actions of the lawyers. With these tips in mind, please help your mediator help you. These simple tips maximize the generally very expensive time that your client is spending in mediation and make it more likely that mediation will result in an agreement. As always, keep the best interests of your client at the forefront. Your client’s family law matter is perhaps the most important thing happening in his or her life at that moment. Treating mediation as a crucial part of the case progress helps your clients resolve important issues and helps you develop a reputation as a prepared and competent advocate.