Dos and Don’ts of Mediation in Family Law Cases
by Jennifer Varadi
More and more jurisdictions are requiring parties to attend mediation at least once, and sometimes twice, before walking into court for trial. In family law cases (divorces, child custody disputes, complex property division, etc.) emotions run high. It is important to set clients up for success by following certain Dos and Don’ts of Mediation.
Avoid Unnecessary Problems
No extra-invitations. Litigation is stressful, and it is only natural for clients to lean on their support system. However, putting settlement terms to a committee is a sure-fire way to breed discontent. Despite the prevalence of divorce or child-custody disputes, no two people are the same and no two cases are the same. When the committee is consulted, clients often latch on to settlement goals based on what seems like the “ideal” result, without considering what does and does not make sense given the facts of their case. For this reason, clients need to understand the importance of cutting off or significantly scaling back communication with their committee members while sitting in mediation. It is far more important for the client to make decisions based on what they can live with, without the external judgment of what other people want for them.
Many mediators do not allow people who are not parties to the suit to be present at mediation. Even if the chosen mediator allows for third parties to be present, these extra-invitations should not be given to the client to hand out. Though the client’s parents, adult child, significant other, etc. may have the best of intentions, they are not the people who have to live with the decisions made at mediation and during the litigation as a whole.
Party to Party Communications. Family law cases are not the type of cases that benefit from joint sessions. Emotions are high and tempers quick to trigger. Clients may think they have reached a point in their case where they can rise above and have direct communication with the other party, but the vast majority of clients fail to comprehend the impact of direct communication until it is too late. For this reason, keeping clients separated is important. If certain clients demand to be in a room together, the mediator should remain present to avoid he-said, she-said arguments late into the day.
Clients should also be warned against texting, calling, or messaging the other party on social media during the mediation process. The tone these exchanges take is subjective based on the person who sent the text and the circumstances and situation in which it is received. In a divorce or child custody dispute, in particular, one word can mean the difference between rebuilding trust between parties and destroying any hopes of reaching a mutually beneficial settlement.
Timing is Everything—How Late is Too Late. Often times the closer mediation gets to the end of the day, the more progress is made between the parties. The choice becomes whether to recess for the day or press on to capitalize on the momentum. It is important to remember that not everyone is used to the long hours attorneys have been accustomed to. Be cognizant of a client’s physical, mental and emotional limitations when extending mediation beyond a regular 9 to 5 day.
The importance of telling your story. Mediation can be a cathartic and therapeutic process. Because so many cases settle in mediation, this may be the only time clients have the spotlight. Giving a client time to get the emotional stress and complaints about the other party off their chest allows them an opportunity to be heard by an individual who is in a position of relative power, and who is not their own paid advocate. Mediation is about trust. Clients need to trust their attorneys to help champion the best terms for them, and clients need to trust that the mediator understands the dynamic between the two parties sufficiently enough to help broker creative solutions.
If a client feels like they have been unable to share their story, they are likely to feel disconnected from the mediator which leads to a feeling that the mediator is playing for the other team.
Timing is Everything—Play the Long Game. The best way to ensure a case settles is to prepare the case as if settlement is impossible, then wait. Attending mediation before case strategy has been determined, discovery is complete and pertinent facts are flushed out is a waste of time and effort. The last thing a client wants to feel is that their attorney is learning about their case and the details of their lives for the first time, while trying to advocate for a settlement. Going to mediation before the case is ready breeds remorse. You do not want clients leaving mediation thinking “should have, could have, would have.”
There is a strong advantage in being the side that has all of their evidence and arguments lined up and ready for trial. It shows confidence to the mediator, the other side, and most importantly, the client.
A successful mediation is dependent on client control and setting client’s expectations from the outset. Reaching a settlement is not the only way to measure success. Mediation is a mechanism to gather information from clients and to test strategies with a competent third-party mediator as the evaluator before walking into court. Clients should be prepped in advance on what to expect and have considered their case goals, so they have the confidence to make it through a day of mediation.