Fran Brochstein's Suggestions for
Family Law Mediators
1. Be in control – it is your mediation – you are the boss – don’t be rushed – have fun!
2. Develop your own style & be comfortable in your own skin
3. Join professional groups (TAM, ACR-Houston, TMCA) & take more training – learn constantly
4. Reality test – costs, time & emotional costs of litigation; can you really pick up child at 6pm?
5. Don’t rush the conversation – listen – take breaks if people get tired/ their eyes “glass over”
6. Let people “vent” as long as they don’t repeat themselves
7. Ask “what do you want to accomplish today?” and “what are you major concerns?” then address them – ask open ended questions to get people to think differently about their situation
8. Ask people to prioritize their top 3-5 issues – write them down & address them
9. Make people focus – many tend to dwell in the past – encourage “moving forward”
10. Invite the lawyer to offer solutions – especially if you are considering declaring an impasse
11. Encourage people to put the past behind & move forward – do what’s right for the children
12. People only tell you the side of the story where they look good – there are at least 2 sides to every story – people lie – assume everyone is telling you the truth – you are not the “truth detective”
13. Ask them “what is the worst thing your spouse will say about you?” then “is it true?”
14. If they say they did drugs a long time ago, ask “what is a long time ago to you?” (72 hours can a long time!) There are many new drugs tests for the synetic drugs & use a reliable drug testing center (National Screening)
15. Sometimes a partial resolution is best – only a few unresolved issues to the judge – list them
(all issues are resolved but the following…)
16. Emotions, pride & hurt feelings are the invisible elephant in the room – the party does not want the other side to “win”
17. When a parent says “I want full custody” ask what that looks like to them
18. If a parent says “I want joint managing conservator” ask what that looks like to them
19. Do not accept personal checks – cash or credit cards only – Square/Paypal readers
20. Participants must sign Agreement to Mediate before you begin. If they won’t sign, stop!
21. Get money at the beginning of the mediation
22. If parties want their MSA to be enforceable then their agreement must be converted into an order for the Judge to sign. A mediator cannot draft an order – send to an attorney to do
23. I have pro se litigants file a Petition for Divorce/Paternity before I mediate so that if we sign an MSA then I can file it at the courthouse & they cannot change their minds
24. Do not give tax advice – refer to a CPA
25. If the parties come back to you for clarification of their MSA, you can only address the MSA – sometimes they try to bring up “new” issues – if it’s not on the MSA they must see the Judge.
So I now include “there are no unresolved issues for the Judge” to resolve this problem
26. Volunteer at the Dispute Resolution Center for experience & so attorneys can get to know you
27. Competition is tight – don’t price yourself out of the market
28. Mediations get scheduled at the last minute & they cancel at the last minute too – be flexible
29. Before declaring an impasse warn the people that I’m thinking of declaring an impasse – ask them if there is anything they can think of to help settle this matter today – invite their input – it works!
30. I use a pencil when I mediate so that I can scratch out/erase ideas – mediation is flexible
31. Offer a second session if the people get too tired to think or you declare an impasse – I’ve settled several at a second session or the case settles the day after the mediation
32. If children are involved in the case, I like to include “parties will return to mediation before any future litigation, unless an emergency situation arises”
33. Offer food and snacks – no one can think on an empty stomach
34. Think “outside the box” – at mediation you don’t have to follow the TX Family Code
35. Constantly focus on the children & the children’s future
36. Everyone breaking up finds their ex “controlling” “mean” “difficult” “impossible” “abusive”
37. For domestic violence cases, keep the parties separate, have them arrive/leave at different times
38. Reality test what co-parenting with the ex is going to look like – kids get sick & “stuff” happens
39. Discuss the child’s needs & extra-curricular activities – discuss how life will be like for the child -- the parents need to minimize the impact their split will have on their children. The children's needs are a priority
40. Many people reject an idea if they think the other party suggested it -- so I always emphasize that these are my ideas
41. Mediation is a magical process, it takes time for the magic to work – don’t get it the way -- keep your ego out of it -- just take your time and let the magic happen!