Wednesday, June 17, 2015

Preparing for Mediation - Some basic thoughts

Mediation is part of the law known as alternative dispute resolution or ADR. 

Mediation is efficient, cost-effective, flexible, and a definite alternative to going to trial. It often allows clients to resolve disputes in a confidential, less formal and costly fashion then preparing for a trial in front of a judge.  It can also save time since most judge's trial dockets are full and you have to wait for a free date - which could be months.   

Understand that mediation can work in your favor - Just because you are confident in your case does not mean all of your evidence will come before the judge. The other attorney can object and try to prevent the testimony from coming into evidence. Also, written statements are not admissible - the person must come to court and testify under oath before the judge. Yes, some judges allow testimony by phone but if the other attorney opposes it then the judge will probably not allow a witness to testify by phone. Judges in Texas are elected and they tend to give something to both parties in a family law cases. I rarely see anyone get 100% of what they ask for -- it happens but the other side must really misbehave in the courtroom and "piss" off the judge.  Plus, most judges hear only the worst of cases (child endangerment, child injury, domestic violence, etc.) so if you think a judge really cares about a spousal dispute regarding temporary orders or division of the martial estate you might be disappointed. Judges expect reasonable people to settle. Plus, if you have a large estate (over $10 million) are you sure you want a judge that probably makes under $200,000 a year to hear your case?

  1. Mediation is not a war, it’s a collaborative effort – Many people have unrealistic expectations - they think that only one person wins and the other side loses. If there are kids involved, then the biggest losers are the kids - not the parents. As my dad said, once you have kids you are never truly divorced. Mediation is meant to be cooperative problem solving or cooperative bargaining. Cooperative bargainers identify interests and examine differences in how the parties value items. Then the mediator and the parties work together to find a solution that satisfies everyone.  It's often said that if both parties hate the mediator at the end of the mediation and both feel they lost that that is a good mediation. There are no winners in family law cases -- yes the attorneys get paid but many people spend thousands of dollars and only receive a few hundred dollars in reimbursement. You need to spend your hard earned money wisely. Be prepared to talk at mediation. I often tell the attorney to just let the client talk. You should have notes to cover all the most important items that you want to accomplish at mediation. For example, in the 4th hour if you mention a new item (I need $50,000 in cash immediately) I usually discount it -- if it was truly important to you then I suspect you would have mentioned the money in the first hour of the mediation. Also, don't get greedy - constantly wanting one more thing will muck up negotiations. Remember, pigs get fat -- but hogs go to slaughter - so don't be a hog! 
  1. Calculate your risks – Because the mediation process is interest-driven, you need to focus on identifying the underlying motivation for each goal. This helps you manage your expectations. For example, do you really want his 1966 Camero or do you just not want him to have it because he loves that car -- perhaps it should be sold and the profits split equally. Or, perhaps you should get something else to off-set the car he loves. I once settled a mediation over a turtle for the kids to have at their Mom's house - she needed just one more thing & the only thing left were the kid's pets! Make a list of your must-haves, your wants, and your wildest dreams. 
  1. Alleviate your fears – Educate yourself about the mediation process and try to understand that although it’s voluntary, it enables the parties to completely control the outcome. My website ( has an article on the first page that I wrote several years ago for a paralegal presentation I gave in Houston for several years. It's still a good article. Mediation affords you the opportunity to state your case, voice your emotions and discuss "hear-say" would the judge could never hear.   Go sit in a courtroom one or two days and watch what happens. It is eye-opening and will make you much more flexible and realistic. I encourage everyone going through a divorce to spend a day or two in court, but no one wants to do it -- you will be shocked at how boring the courtroom is and how painfully slow a trial goes - especially a jury trial. You might also see a judge lose their temper -- never a pretty site. Judges are humans and each judge has certain topics that forces them to see red - could be drugs or child abuse. Issues like "being unfaithful via email/text only" is usually not that big a deal. 
  1. Be open-minded – There are more always more than one way to solve a problem. Think outside the box. Think of many options to resolve your family's issues. Be flexible. Be creative, Think about the ultimate goals and outcomes you desire. For example, do you want to make sure your kids get their college education paid in full? Then even though Texas does not allow child support after a child turns 18 or graduates from high school there are other options - college bank accounts where the spouse sends a quarterly or annual statement to the other parent, life insurance, etc. 
  1. Ask “why” questions – Understand your real motivations and knock down “positional walls” to gauge your most important interests and wants. In divorce mediation, there are often similar interests like custody and property. Each spouse has different routes and motivations for achieving those goals. Sometimes it takes help from the attorney and mediator to help budge the parties and reach a resolution. If both sides walk away from a mediation session not getting everything they want, the mediation was successful. Many people leave mediation totally exhausted because they have worked so hard to resolve their difference. It's very hard to do and the mediator knows it.
  1. Find out your real fears – What are you truly afraid of? What do you want to avoid? Look at the strengths and weaknesses of your case. Every case has strengths and weaknesses - if you say there are no weaknesses then you will probably have a hard time at mediation and/or trial. For example, if Mom is a bad/negligent parent and you stayed married to her for years and let her stay home drunk/stoned with the kids then how do you expect that to reflect in a positive manner on you at mediator or in front of a judge?  You want to go into the mediation with your best foot forward and that includes strong preparation for your strengths and weaknesses. Many people have what I call "unrealistic" or "boogie man" fears. For example, many mothers fear that the child will be hurt while the child is alone with dad. If the baby is under 3 years old they cannot communicate well but a teen-ager can call "911" or tell you if something bad happens. Courts cannot deal with "unrealistic" fears. Judges only want concrete, immediate fears -- if it happened more than 2 years ago and you stayed in the relationship then it must not have been that bad. If it was truly bad, you would have left then. 
  1. Does you secretly want to maintain the relationship? – This can impact the final settlement and your interests. If you still wants to maintain a somewhat positive relationship with the other party, you will need to bargain for things that don’t offend or upset the other side. If you  don’t want to salvage the relationship, then your bargaining room widens.Realize that the other side might be "playing" you and once they get everything they want that they will drop you like a hot potato - be warned! 
  1. Research your mediator – Google, LinkedIn, Yelp, Facebook, Twitter, their website, their blog and asking your attorney are excellent ways to research your mediator. Find out how that mediator operates, what they expect, and whether they are biased. You want to find someone who will give you the best chance for success. Recognize that mediators understand that everyone tries to put on their best face, most people don't tell the truth, attorneys attempt to manipulate them, etc. and the mediator deals with this behavior on a daily basis. Recognize that most decent attorneys settle before mediation. So mediators tend to see only "bad" bases.  And, recognize that judges only see the really bad cases that mediators cannot settle. Some judges will send you back to different mediators two or more times before they will let you have a trial date. Judges know that mediation works and most use it to keep their dockets moving. 
  1. Anticipate counter-arguments – Run through different scenarios to determine the other party's opinion and counter-arguments. Be creative. Have these responses planned ahead of time in a way that allows you to play defense and still be able to steer the conversation back to your side. For example, I will ask one spouse - what is the worst thing your spouse will say about you? After they answer, I ask them is it true?

No comments:

Post a Comment