From an attorney’s perspective:
As we all know (or should know) the purpose of mediation is to maximize the chances that our client’s case will settle before they are forced into a potentially unnecessary trial. In order to facilitate this process it is imperative that we, as attorneys, arrive prepared to resolve our client’s issues.
My goal is to provide you with some tips that will enable you to properly prepare for your next mediation. In virtually all cases our clients actually want to settle. Yes, that means even your crazy client who demands litigation actually wants all of his or her divorce related problems to go away.
How do you prepare for mediation? What can you do to ensure that you are as prepared as you can be?
For financial matters you should, at a minimum, have the following:
- A spreadsheet that details the assets and debts as well as their values. Bring your laptop so you can modify the spreadsheet throughout the day. Having this resource available to you will enable you to constantly track and monitor the offers and know the impact on the actual division. Have a non-retirement asset section as well as a retirement asset section. That way you will clearly see the difference between the two and not make the mistake of thinking that $250,000 in a 401(k) has the same value as $250,000 in a money market account with BB&T.
- A detailed budget showing your client’s income and expenses. In spousal support cases you should know what your client’s actually needs are or what they can realistically afford to pay, depending on which party you represent. Be sure to have verification of their current income and their income for the last several years. When preparing a budget with your client, treat the document as if it were a financial affidavit. Have documents that support the numbers or you will be negotiating against yourself. If you are confident in the numbers you can use the budget to show the mediator and your spouse what the delta is between the income and expenses. Do not underestimate the strength of an accurate budget.
Also, be sure to counsel your client that in court they may receive less than they believe they “need” or they may be ordered to pay more than they believe they can “afford to pay.” Rarely does someone get exactly what they want in court, and your clients should know this. Don’t steer them into the idea that the judge will see things their way since you don’t know what the judge will do. You should be prepared to deviate from what your client wants to do in order to account for the uncertainty and expense of a trial. Make sure to discuss this with your client before the mediation so they are not facing this realization for the first time in the middle of negotiations. Otherwise, your client may feel pressured into settling and, even if the settlement is good, they will not see it that way, and you will be the person they blame.
In child custody matters, you should prepare several parenting plans that are acceptable to your client. You should also prepare one or two that are less than what your client wants and let them consider those prior to mediation. That way they will be able to process an offer they may see in mediation and will be equipped to respond logically rather than emotionally at mediation. Again, make sure your client knows what the cost of litigation will be so you can advise your client to make business decisions. By preparing this information in advance of mediation and going over it with your client in detail as part of the preparation process, you will enable your client to consider the hard choices they will have to make in advance and thus help them to avoid making decisions they are not comfortable making them.
When I prepare my clients for mediation, I work on their best case scenario and their worst case scenario. Then we talk about what sort of deviation south of their worst case scenario would work to have the matter fully resolved. When an offer comes in, I have them follow a simple two-step process of first reviewing the offer and next responding to it. I instruct my clients to read the offer in its entirety before making any comments or coming to any conclusions. It is important that they fully understand the offer in its entirety before commenting on it. If they do make comments, I quickly guide them back to the task of reading the offer. Once they have fully read the offer and understand it, we go to the top and work our way through it working on a counterproposal. I try to keep them focused on what the response should be, not how bad the offer is.
As a mediator I find that negative comments about an offer do not help them to reach a settlement. It is better if everyone can just accept the fact that they aren’t going to like the early offers, and sometimes the later offers, but that their job is to respond until we get the offers to where we want them. I use the analogy that the mediation is like chopping a tree down. The first swing of the ax will not bring a tree to the ground just like the first offer will not settle a case. However, your responses to the various offers are critical and can certainly make the mediation more difficult if not handled properly. Spend your time continuing to negotiate rather than discussing how “bad” an offer is. If you can do this and advise your client that they need to hang in there for the long haul then they will likely have their issues resolved when the day is over. As with most things in life worth obtaining, patience is the key to getting what you want.
From a mediator’s perspective:
As a mediator I like to spend some time at the beginning of mediation with each party explaining the mediation process and how the day will unfold. I tell them that the day will be “long, exhausting, and anything but fun.” I believe it is my job to make sure the parties immediately understand that they are in for a long day and it will require hard work before we can reach a settlement but that in the end it will be worth it. A mediator once said to a client of mine “as long as you’re each equally unhappy we’ve had a good day.” The point of the statement was to make it clear to my client that both parties were feeling the pain and that both parties were equally giving and compromising. I find that each room typically believes that they are the only ones who are compromising and moving from their initial positions. I quickly point out that the other room is just as upset as they are and that it is part of the process. Without exception I find that the parties find it hard to believe, which is why I continually bring it up and make them aware. As their attorneys, you have to understand that your clients want to leave mediation with an agreement and we must take the necessary steps to help them achieve that goal.
I have been mediating cases for several years and find it to be a very rewarding part of my practice. I enjoy helping people resolve their disputes and I especially enjoy working with the many attorneys who have trusted my abilities over the years. When I am chosen as a mediator I take great pride in the fact that attorneys have many choices as to who they can use to mediate their case. Accordingly, when chosen I treat each case like it is the last case I will ever mediate. My goal is to achieve a complete resolution of all issues. In nearly all of the cases I mediate that happens. However, once in a while I come across a case that simply can’t be resolved, and, while unfortunate, I can still feel good knowing that I did my best to make sure that every possible option was discussed before the impasse is reached. In saying that, I’d like to offer some tips from my mediation experience as well as from my extensive reading on the subject.
10 Tips for a Successful Mediation
- Have an Offer Ready. Even if you think the other side will make the first offer, have your first offer ready. This not only forces your client to be prepared but it also reduces the time you spend on the dreaded first offer. Simply send your first offer over after making any adjustments necessary based on their first offer. Additionally, after you send an offer over to the other side, take that time to work on a counteroffer to the next offer you receive. Discuss with your client what you each believe the next counteroffer will be and prepare possible responses. Don’t waste the valuable time when the mediator is in the other room checking emails, reading magazines or talking about your new expensive car. Your client is on pins and needles waiting for what comes next. Work with them to keep them busy and prepared for what the mediator will bring back into the room.
- Understand the Interests of Both Parties. You are in mediation because the opposing clients have differences in interests between them. Obviously you need to know the interests of your client, but you also need to gain an understanding of what will make the other party settle. If you can’t identify the other party’s interests you will not be able to effectively negotiate. For example if the other party is dead set on an equal custody schedule but your client insists on having more time during the school year then maybe a schedule that grants the other side more time at school breaks would work. Maybe it won’t but you need to be able to explore that option so that you are leaving no stones unturned. How can you determine what the other party’s interests are? Keep reading.
- Listen to Your Mediator. Yes, you should actually listen to your mediator because they will be spending time in the other room learning what is important to the opposing side. Your mediator will typically know what it is going to take to settle your case and often this realization occurs much sooner in the day than you think. Ask questions such as “What do you think is important to them?” or “What do you think is a reasonable response?” Of course you can’t ask the mediator for legal advice, but they are an invaluable resource full of the exact information you are looking for. I can’t tell you how many times I have had attorneys ignore the information I am presenting to them, and this is a big mistake.
- Don’t Make Threats. Avoid statements such as: “We’re done!” “We’re outta here!” “This offer is bull#&@!” “Does that attorney have any idea what they are doing?!” “This is the worst offer I have ever seen!” “Why are we even here?” While seemingly funny, I have heard each of these and many other similar statements. The statements create problems and cause the mediator to spend valuable time re-explaining why they should stay in the mediation and how virtually every single mediation I perform settles. These statements waste everyone’s time and tell your client that they shouldn’t be trying their best to resolve the issues. If the case is to the point of impasse, your mediator will tell you. Until that happens, stick to the plan and continue to negotiate.
- Have Your Documents Available. Evidence showing date of separation values, verification of income, and the like are crucial. Make sure you are able to prove the accuracy of financial information if it comes into question. Exchange important financial documents to be sure everyone is working with the same set of values. We like to confirm with opposing counsel that they have everything they need prior to a mediation and have found this to be very helpful in both gaining the trust of the opposing side as well as facilitating constructive settlement conversations.
- Make Time Constraints Known as Early as Possible. Make sure everyone knows at the beginning of mediation if you have to leave by a certain time. Don’t tell everyone at 5:15 p.m. that you have to leave at 5:30 p.m. Time constraints are rarely a problem if everyone knows about the issue at the beginning of the day or better yet, before the mediation is scheduled.
- Be Respectful. Treat the other party with respect. If you find yourself in their room make sure to introduce yourself and act like a professional. Similarly, treat the opposing attorney and the mediator with respect. If you have personal feelings about someone, keep them to yourself. Remember it is entirely possible your client may not have told you “the truth, the whole truth and nothing but the truth” during the times you met with them prior to the mediation. The story you have been told is based on your client’s perception of what happened, so don’t assume everything seen through their rose colored glasses is accurate.
- Be a Thinker and a Problem Solver. Your client is under a lot of stress. They have not attended hundreds of mediations like you have and they are likely very nervous. They will look to you for guidance and advice throughout the day. Work with them to come up with alternative solutions to the problems they are facing. This is your time to get creative and show everyone just how great you really are.
- Have a Final Document Drafted Before Mediation. If you don’t, you may find yourself scrambling to get something together at 10 p.m. and that is where you’ll make a mistake that can cost your client. If you don’t have a final document prepared then you should strongly consider executing a Memorandum of Mediated Settlement Agreement to ink the broad strokes of your agreement. If you do execute a Memorandum of Mediated Settlement Agreement I suggest you agree to include a provision allowing the mediator resolve any drafting disputes that may arise. Your mediator will have detailed notes from your mediation session and can review those notes to resolve such issues based on the intent of the agreement.
- Be Tolerant. Mediation is all about compromise. You will start at one end of the spectrum but the final agreement will likely be far from that point. Know that throughout the day you will be moving along, closer and closer to where you need to be. As a professional you must accept the fact that you are in the mediation session for the long haul. Understand that the opposing attorney may have different opinions from yours and work from that understanding. If you feel yourself becoming frustrated then take a quick break to clear your head so that when the time comes you are ready to put your best foot forward and resolve the case to your client’s satisfaction.
Bonus Tip: Trust your mediator. You chose your mediators based on a certain skill set they have obtained and certain personality traits they possess. Trust your initial instincts and let the mediators do the work your client is paying them to do.
In conclusion, mediation is an important process that attorneys have available to resolve their cases. However, mediation is not to be taken lightly. It is a very demanding process and requires thorough preparation. If you are up to the challenge of properly preparing for your mediation and you make sure that your client is equally prepared you will find that most, if not all, of your cases will be resolved when the day is completed.
Jeffrey E. Marshall is a partner with Marshall & Taylor, PLLC. He focuses his practice solely on family law and divorce matters. Jeff is a Board Certified Specialist in Family Law and a DRC Certified Family Financial Mediator. Jeff has been listed among the “Legal Elite” for Family Law in Business North Carolina Magazine and has been listed among North Carolina Super Lawyers for Family Law.