July 20, 2017
Mediation is often one part of the divorce process. This month, Jenny Bradley offers tips for those preparing to mediate. Bradley is a board certified specialist in family law and a DRC Certified Financial Mediator. She works for Cheshire Parker Schneider & Bryan, PLLC.
The most successful mediations I have been a part of have been the ones in which the clients and the attorneys were the most prepared. In many of the cases that have not resolved in mediation, clients, too often, do not appear to have been prepared for the process of mediation and/or the finality of settlement, and/or the attorneys seem not to have an adequate handle on the facts and applicable law in the case. No matter how many times you have been involved in mediation, please remember that the parties, the issues, opposing counsel and even the mediator vary from case to case.
Unlike in Court where a Judge makes binding decisions, mediation allows each party to have some control over the resolution of the dispute. By being prepared for mediation, you can help direct the resolution of your matter. Below is a sampling of some tactics I have employed over the years when representing clients in mediation and when discussing the mediation process with clients. You should tailor these to each individual case.
Preparation tips for clients:
- Understand that mediation is an opportunity to reach an agreement and to avoid the costs, frustration and delays of Court. With that in mind, consider in advance what your most realistic outcomes in Court are and what some suitable alternatives are in reaching an agreement.
- Know the risks of proceeding to Court. Evaluate your comfort level with those risks.
- Ponder what you and the opposing party both need in way of resolution to feel content with the result.
- Determine what have been the impediments to settlement in the past.
- Contemplate what is your child(ren)’s best interests and acknowledge that their best interest may not be the same as your desires or needs.
- Provide your attorney with all documents (well in advance) necessary to evaluate your support, property, and custody claims and to dispute different contentions from the opposing party.
- If your proposal involves refinancing a debt, know whether or not you can qualify to do so prior to the mediation.
- If your settlement may involve you owing a sum of money, figure out how you can pay that sum of money before mediation.
- Understand that you cannot change people, places or things, but you can control how you react to those items. Don’t expect the mediator, your attorney or even the Judge to be able to change the opposing party or his/her actions.
Preparation tips for attorneys:
- Encourage your client to have an open-mind about settlement possibilities.
- Inform your client that the mediation process may take all day or longer and not to schedule other matters for the day of mediation. Schedule a two-day mediation if necessary.
- Prepare your client to make difficult choices, and remind him/her that there is always a choice.
- Let the mediator know what you believe the mediator can do to help resolve this matter, including educating the mediator about prior impediments to settlement.
- Have settlement documents prepared in advance or begin preparing them at the beginning of the day.
- Be willing to make the first offer. Better yet, have a conversation with the opposing party or counsel, if represented, about who will make the first offer.
- Come to mediation with both parties’ financial affidavits and listings of marital property, along with values (as well as documents to support your client’s contentions). Reschedule the mediation if you do not have adequate documents to proceed.
- Compose a parenting plan/custody schedule in advance and discuss possible compromises with your client.
- Understand the retirement plans involved in the case, and know how, and if, they can be divided.
- Learn the cost and availability of life insurance in advance if you plan on asking for a policy to secure future obligations.
- Examine health insurance options for the client and child(ren), if any.
In cases where the client or the attorney is not prepared for mediation, much time and expense is spent learning the answers to some of the above issues rather than in settlement negotiations, and, as you can imagine, the parties grow frustrated and weary in the mediation process, often leaving with no resolution.
I continue to be amazed about how much more background research and preparation people do when buying a house or car, choosing a vacation or selecting a restaurant than when preparing to make major life decisions or preparing to assist their clients in these decisions in mediation. Help the mediator help you by being prepared.