The Progressive Lawyer

An 11th-hour mediation can bring a fresh outlook to the case. By the time a case is on the brink of trial, even the attorneys may be emotionally involved or overly sensitive to the issues in the case. The parties are usually well entrenched within their respective positions. The mediator has a fresh viewpoint, more objectivity and less ego investment in any particular position. The relative lack of competitive motivation and fear of loss on the mediator's part allows creative thinking and problem solving.

Neutral third-party assessments and observations frequently advance the opportunity for solutions during the course of pending divorce and custody matters. This is one of the reasons that the early settlement panel projects in use in many states have been so successful in fostering case settlement. In some cases, an adversary may be providing inaccurate legal advice to the client. In other cases, an attorney may have a client who will not listen to advice. The mediator can help in both situations by providing a competent outsider's prospective. While the list of advantages of solving disputes cooperatively is as long as the list of disadvantages associated with litigated outcomes, the costs and trauma of litigation can never be overlooked as an important reason for opting out of it.

Taking Your Case to the 11th Hour

The first decision an attorney should help his or her client make is the type of mediation style best suited to the particular case, as well as what the professional qualifications of the dispute resolution professional should be. Some mediators are practicing family lawyers; some are not. Facilitative mediators see themselves as empowering the parties to reach a resolution without imparting their personal viewpoints. Evaluative mediators take a more direct approach, and participate actively in the resolution of the issues. This is particularly true where the mediator is a family lawyer. Generally, evaluative mediators are the most effective in a case that is going to mediation on the 11th hour.

Both before and following the selection of the dispute resolution professional(s), orient your clients to how mediation works, generally and specifically. Clinging to bargaining positions must be discouraged and even identified as one of the reasons settlement has not already been reached. Direct your clients to read concise, understandable texts and articles on effective negotiation and conflict resolution practices. They must likewise be given guidance concerning the manner in which they should communicate during problem solving sessions, in order to avoid unproductive exchanges and personal slights.

Conclusion

Clients should always know their ultimate objectives, and what the value of each is to them, now and in the future. They should always be challenged whenever their perception of relative value might be distorted by the tensions of the current situation. Once the 11th-hour mediation session has been scheduled, clients and attorneys alike must set themselves up for success by preparing and committing themselves to adopt attitudes and behaviors consistent with the spirit and objectives of collaborative problem solving.

Mediation and most other forms of alternate dispute resolution are typically employed in advance of the court process. Eleventh-hour divorce facilitation, shortly before a scheduled trial date, differs greatly from divorce mediation convened early on in a case. When mediation is attempted before any litigation begins, the parties often attend without their attorneys. The mediator tries to help the parties reach an agreement by promoting a resolution of the issues. In such situations, the mediator must be very careful not to provide legal advice to the parties. This is difficult, particularly if the mediator is an attorney. Although attorneys usually do not attend mediation before or during the early stages of litigation, it is generally advisable for the parties to consult with legal counsel prior to participating.

Attorneys are usually a part of the mediation or facilitation process, however, if the mediation takes place later in the litigation, or if something like this author's Progressive Divorce(R) or Collaborative Law approach is used. The presence of an attorney allows the mediator to approach things in a somewhat different way. The mediator can be creative in discussing alternate resolution options with the attorneys, as well as with the parties, and does not have to be concerned that the parties might think the mediator is giving legal advice. The mediator, employing a form of “shuttle diplomacy,” can caucus with each side individually, allowing separate discussions to take place in confidence. Confidentiality is particularly important where the parties need to preserve the unknown elements of certain litigation strategies for the trial.

Shuttle diplomacy also allows the mediator to buffer non-productive emotional responses, especially because emotions often run high late in the litigation. Separation is usually mandatory where there are domestic violence restraining orders in place, and advisable where there are power imbalances between the parties.

An 11th-hour mediation can bring a fresh outlook to the case. By the time a case is on the brink of trial, even the attorneys may be emotionally involved or overly sensitive to the issues in the case. The parties are usually well entrenched within their respective positions. The mediator has a fresh viewpoint, more objectivity and less ego investment in any particular position. The relative lack of competitive motivation and fear of loss on the mediator's part allows creative thinking and problem solving.

Neutral third-party assessments and observations frequently advance the opportunity for solutions during the course of pending divorce and custody matters. This is one of the reasons that the early settlement panel projects in use in many states have been so successful in fostering case settlement. In some cases, an adversary may be providing inaccurate legal advice to the client. In other cases, an attorney may have a client who will not listen to advice. The mediator can help in both situations by providing a competent outsider's prospective. While the list of advantages of solving disputes cooperatively is as long as the list of disadvantages associated with litigated outcomes, the costs and trauma of litigation can never be overlooked as an important reason for opting out of it.

Taking Your Case to the 11th Hour

The first decision an attorney should help his or her client make is the type of mediation style best suited to the particular case, as well as what the professional qualifications of the dispute resolution professional should be. Some mediators are practicing family lawyers; some are not. Facilitative mediators see themselves as empowering the parties to reach a resolution without imparting their personal viewpoints. Evaluative mediators take a more direct approach, and participate actively in the resolution of the issues. This is particularly true where the mediator is a family lawyer. Generally, evaluative mediators are the most effective in a case that is going to mediation on the 11th hour.

Both before and following the selection of the dispute resolution professional(s), orient your clients to how mediation works, generally and specifically. Clinging to bargaining positions must be discouraged and even identified as one of the reasons settlement has not already been reached. Direct your clients to read concise, understandable texts and articles on effective negotiation and conflict resolution practices. They must likewise be given guidance concerning the manner in which they should communicate during problem solving sessions, in order to avoid unproductive exchanges and personal slights.

Conclusion

Clients should always know their ultimate objectives, and what the value of each is to them, now and in the future. They should always be challenged whenever their perception of relative value might be distorted by the tensions of the current situation. Once the 11th-hour mediation session has been scheduled, clients and attorneys alike must set themselves up for success by preparing and committing themselves to adopt attitudes and behaviors consistent with the spirit and objectives of collaborative problem solving.