Eight Tips for a Successful Mediation in a Family Law Matter

If the parties are able to afford private mediation and have significant issues, the next consideration concerns selecting the right mediator for a particular case. For instance, does the case at issue have difficult children's issues? Complex financial issues? Experience with various family law mediators will assist in selecting a mediator who is best suited to addressing the issues in your case. Regardless of the type of case, in all matters, it is crucial to have an experienced mediator, who understands the importance of being honest ' sometimes brutally so ' with both sides and who is willing to motivate or “push” the parties toward settlement.

Because the mediator is frequently relied upon to express each party's position to the other side, such conduct by the mediator is central to having each party recognize the weaknesses in its own case and, therefore, the benefits of compromise.

Finally, once the mediator has been selected, make sure to schedule the mediation somewhere comfortable and suitable for the purpose. For instance, be cognizant of where the mediation is being scheduled ' i.e., select an office that has at least two conference rooms where each party will be able to spread out adequately and work. Often overlooked, “creature comforts,” such as access to food, drinks, and the Internet, can be the difference between parties buckling down to push through an all-day mediation or ending early.'

2. Ensuring You Are Ready For Mediation

In scheduling the mediation, strategically select a date that enables you to become adequately prepared. In many jurisdictions, attendance at mediation is a requirement before the parties can attend a final hearing or even a hearing on temporary relief issues. As a result, mediation can sometimes be seen as simply a task that needs to be “checked off” the list. Do not let even a mandatory mediation be a waste. Mediation is a great time to discover the strengths and weaknesses in your case, as well as in your opponent's case. It is also often the first time you learn each party's position and arguments, which will likely be the themes carried throughout the duration of the case.

Accordingly, in order to make the most of a mediation, before it is scheduled, review the file to determine whether you have all necessary discovery. For instance, have you received the other party's required financial disclosures, such as a family law financial affidavit and mandatory financial documents? Beyond these, do you need additional discovery? If so, make sure to set mediation for a date that gives you sufficient time to send and receive a request for production, interrogatories, and the like. Walking into a mediation informed is a powerful tool and equips you with the ability to settle a case, i.e., it is not taking a party's word as to income, but instead having the actual pay stub to prove it.

In addition to ensuring that you have all the discovery needed from the other party, make sure that your client's discovery is in order. For instance, there may be necessary changes that need to be reflected in your client's financial affidavit, such as a decrease in income or increased expenses. Make these changes in advance of the mediation so no one is working from old information. Further, make sure there is no outstanding discovery, such as documents requested that have not been produced (unless objected to). It would be unfortunate for a mediation to stall because the other party does not have the information they feel is necessary to make an informed decision.

3. Contact Experts Ahead of Mediation

Although you may not have hired any experts yet, when evaluating your case before attending mediation, consider whether you need to retain an expert or at least consult with one. For instance, if there is real property at issue in a divorce, a frequent dispute between the parties is the value ' one party claiming it is an asset worth a certain amount of money, the other party claiming that the asset is worth less or is even underwater because of the mortgages associated with the property.

In such an instance, before you attend mediation, consult with an appraiser or realtor to get an appraisal or at least a comparative market analysis (CMA) so that an objective number can be utilized at the mediation. Other examples include conferring with a CPA concerning a certain asset owned by the parties, or regarding tax implications related to a contemplated distribution. Having these conversations before the mediation can be helpful in shaping your case and allowing you to know the entire picture once the mediation proceeds.

If an expert has already been retained and is anticipated to provide a report, such as a guardian ad litem's findings and recommendations, or a business valuation, make sure to have this analysis beforehand, as well as to circulate it to all necessary parties. If it is your intent to rely upon this report, or the expert's analysis concerning a certain issue (for instance, the other party's income and ability to pay support), it may be helpful to have the expert in attendance at the mediation.

4. Prepare, Prepare, Prepare

Once you have reviewed the file and gathered all necessary information, whether obtained from discovery, the client, or an expert, it is important to prepare for the mediation. You would be surprised how often attorneys simply show up at a mediation with a file in hand and nothing more. Preparing is crucial to a productive, efficient and ultimately successful mediation.
It entails:

Drafting the settlement agreements. In Florida, for instance, parties to a divorce often memorialize their settlement in two separate agreements: 1) a Parenting Plan, which sets forth all of the parenting issues, such as timesharing/contact, holiday schedules, decision-making authority, extra-curricular and summer activities, medical needs of the children, educational issues, and the like; and 2) a Marital Settlement Agreement, which sets forth all of the financial and other issues, such as equitable distribution of the marital estate, alimony, and child support. These documents are usually quite lengthy (sometimes more than 30 or 40 pages depending on the issues covered therein) and require significant attention to myriad details. It is helpful, therefore, to have thought through the language and provisions to be included in these documents before the mediation so that, in the rush of a mediation, after clients have been sitting through hours of discussion, they do not then have to wait impatiently for an agreement to be drafted.

In addition to helping the attorney, it is valuable to have the client review these draft agreements in advance of the mediation as well. This familiarizes them with the terms of the documents so they are not forced to digest all of the legalese in the hurried pace of mediation. It also allows them to become a part of the process early on so that they feel as though they have contributed to their case.

Doing the research. In addition to drafting the settlement documents, be sure to do the research and necessary calculations to support your positions. For instance, do you need supporting case law as to a particular issue? Or, maybe, for example, a secondary article explaining how your particular state handles the formula for determining the marital and non-marital values associated with unvested stock options, or with passive appreciation in real property? Similarly, if child support or alimony is at issue, it is beneficial to run calculations for various scenarios you anticipate being at issue so that both you and the client have an idea of the range that can be expected to be discussed at mediation. Having already done both the research and the math ahead of time, these facts and numbers are likely to be what is relied upon at mediation and also help to avoid any errors at the same time.

Preparing everything else. If the goal of mediation is to resolve all outstanding issues in the matter, try to prepare everything you will need to do so, such as the Final Judgment, so that opposing counsel can review and approve it at the mediation; the power of attorney or other such documents necessary for the parties to transfer title to one another's vehicles; the deeds necessary to transfer real property; and the income deduction order/income withholding order, so that it is ready for the judge to sign. This enables both attorneys to save time after the mediation on “wrap-up” matters, thereby allowing their clients to get to the final hearing as quickly as possible to bring the matter officially to a final conclusion.

5. Meet with the Client

Prior to the mediation, but after you have sufficiently prepared, set a time to meet with the client. This meeting is crucial. Most clients are wholly unfamiliar with the mediation process; meeting with them in advance of the mediation provides the opportunity to get them acquainted with it. First, explain what mediation is and how it is different from a court proceeding (i.e., explain that mediation is a form of alternative dispute resolution, that the mediator assists the parties in reaching a resolution, but is not a judge and, therefore, is not a decision-maker, and that the process is confidential and protected from disclosure in the event it is unsuccessful). It often helps clients to know what to expect and that, while you encourage settlement, they will not be forced to reach an agreement at that time (i.e., they have control).

The meeting with the client is also important for discussing strategy for mediation, reviewing the aforementioned documents once again, establishing the client's goals and hashing out options for mediation in conjunction with those goals. During this discussion, it is advantageous to provide the client with realistic expectations so that s/he understands that, while you may take certain positions and request certain relief at the mediation, this may not be what is ultimately agreed to or what they would be entitled to should the matter proceed to trial. In this regard, a client should be made aware of “worst-case” scenarios, as every case has a weakness. Such realistic expectations are vital because successful mediations require compromise from both parties.

In addition to legal strategy, the client meeting is an opportunity to prepare the client for the emotional side of mediation. Explain that both parties are often dealing with various emotions (whether sad, angry, scared or frustrated) and will be bringing these emotions with them to the mediation. As a result, it is important for the client to be patient and flexible. Further, as mediations can become emotionally charged, advise clients that they can take a break from the mediation at any time, and can always speak with you alone if necessary. In discussing this aspect of the mediation, use this opportunity to assess the client's mental state and determine, for instance, if it should be recommended that they speak with a counselor before the mediation.

6. Educate the Mediator

In advance of the mediation, utilize your hard work and preparation to your advantage: Send it to the mediator. One effective way to accomplish this is to prepare a narrative letter or mediation statement, which explains to the mediator the parties' history and background, as well as the issues in the case. Take this opportunity also to emphasize important considerations that may not be gleaned from a review of the pleadings and to advocate your client's concerns and positions. After reviewing this mediation statement, the mediator will come to the mediation understanding your client's perspective, concerns and goals. This can be especially valuable as the other side may not take the time to prepare such materials for the mediator.'

With the mediation statement/letter, include a notebook of all the necessary pleadings (Petition, Financial Affidavits, etc.) and mediation documents (the draft Marital Settlement Agreement, child support guidelines, etc.). The mediator will appreciate the time and effort you have taken to get him/her up to speed; further, it will demonstrate that you are taking the mediation process seriously. When creating the notebook for the mediator, make extra copies for yourself and the client so that everyone can easily refer to the same materials during mediation, e.g.: “If you flip to Tab 4, you will see that her expenses show ' “

7. Initiate a Dialogue with Opposing Counsel

Depending on the case, it may be helpful to initiate a dialogue with opposing counsel before the mediation. For instance, a telephone conference can be set to discuss proposals or at least outline the issues needed to be addressed at mediation. A letter can also be sent to opposing counsel enclosing the draft settlement documents and explaining your preference to work from them during the mediation. Providing these documents, which may contain either blanks to be filled in at mediation or your client's suggested proposals, prior to the mediation, ensures that any “shock” or “surprise” from the other side is handled before the mediation, giving the other party a chance to digest your positions and speak with his/her attorney about them. By addressing the inevitable questions with opposing counsel beforehand, you ensure that both parties are prepared for mediation because everyone is on the same page.

8. Make Sure You Are Prepared

After you have prepared everyone else, now make sure you are ready as well. Confirm again that you have all mediation materials and extra copies of any necessary documents. If you are traveling to a different office, bring a laptop with all of the documents already uploaded so that they can be easily amended during the mediation. Also, prepare an outline of the issues and an “opening statement” if this is how your mediator normally begins a mediation. Last, be ready to be creative. Mediation provides the chance to come up with solutions that may not be possible at trial. Being creative will enable you to come up with solutions that work to create a global settlement agreement for both parties.

Rebecca Palmer, a member of this newsletter's Board of Editors, leads the Family & Marital Law practice at Orlando, FL's, Lowndes, Drosdick, Doster, Kantor & Reed, P.A. Crystal E. Buit is an associate in the Family and Marital Law practice.

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Mediation has become an important component in family law proceedings. Going to trial ' once you finally get there after waiting months, sometimes years, due to busy court dockets and unnecessarily prolonged litigation ' is expensive, takes quite an emotional toll on the parties and, at the end of the day, requires waiting for an uncertain result because no one can truly predict how the judge is going to rule. Accordingly, while court intervention in family law matters is sometimes inevitable, in the vast majority of cases it is in both parties' interests to resolve their divorce, post-dissolution issues, paternity action, or other family law matter in mediation. This article offers eight tips for making the most of mediation in a family law matter.

1. Scheduling the Mediation

The first step to ensuring a successful mediation begins before the mediation is even scheduled; it is important to consider factors that will help set the stage for a productive mediation. For instance, parties often have the choice to attend either: 1) a private mediation, in which they select and pay for a mediator, who is often a seasoned family law attorney, and will have the mediation at a time and place convenient for the parties; or 2) a courthouse mediation, which frequently also has a seasoned practitioner serving as mediator, such as a retired family law judge, and is held at the courthouse where the case is pending. The primary difference between a private and courthouse mediation are the costs ' a courthouse mediation is more often than not conducted at a significantly reduced cost (as compared with paying another family law attorney an hourly rate to serve as mediator); however, the tradeoff is time. In a private mediation, the parties can agree to start a mediation at 9 a.m. and go well into the night or continue the following morning, if necessary, to reach an agreement, as opposed to a courthouse mediation, which is often limited to only a few hours and has to be pre-scheduled with the court.

If the parties are able to afford private mediation and have significant issues, the next consideration concerns selecting the right mediator for a particular case. For instance, does the case at issue have difficult children's issues? Complex financial issues? Experience with various family law mediators will assist in selecting a mediator who is best suited to addressing the issues in your case. Regardless of the type of case, in all matters, it is crucial to have an experienced mediator, who understands the importance of being honest ' sometimes brutally so ' with both sides and who is willing to motivate or “push” the parties toward settlement.

Because the mediator is frequently relied upon to express each party's position to the other side, such conduct by the mediator is central to having each party recognize the weaknesses in its own case and, therefore, the benefits of compromise.

Finally, once the mediator has been selected, make sure to schedule the mediation somewhere comfortable and suitable for the purpose. For instance, be cognizant of where the mediation is being scheduled ' i.e., select an office that has at least two conference rooms where each party will be able to spread out adequately and work. Often overlooked, “creature comforts,” such as access to food, drinks, and the Internet, can be the difference between parties buckling down to push through an all-day mediation or ending early.'

2. Ensuring You Are Ready For Mediation

In scheduling the mediation, strategically select a date that enables you to become adequately prepared. In many jurisdictions, attendance at mediation is a requirement before the parties can attend a final hearing or even a hearing on temporary relief issues. As a result, mediation can sometimes be seen as simply a task that needs to be “checked off” the list. Do not let even a mandatory mediation be a waste. Mediation is a great time to discover the strengths and weaknesses in your case, as well as in your opponent's case. It is also often the first time you learn each party's position and arguments, which will likely be the themes carried throughout the duration of the case.

Accordingly, in order to make the most of a mediation, before it is scheduled, review the file to determine whether you have all necessary discovery. For instance, have you received the other party's required financial disclosures, such as a family law financial affidavit and mandatory financial documents? Beyond these, do you need additional discovery? If so, make sure to set mediation for a date that gives you sufficient time to send and receive a request for production, interrogatories, and the like. Walking into a mediation informed is a powerful tool and equips you with the ability to settle a case, i.e., it is not taking a party's word as to income, but instead having the actual pay stub to prove it.

In addition to ensuring that you have all the discovery needed from the other party, make sure that your client's discovery is in order. For instance, there may be necessary changes that need to be reflected in your client's financial affidavit, such as a decrease in income or increased expenses. Make these changes in advance of the mediation so no one is working from old information. Further, make sure there is no outstanding discovery, such as documents requested that have not been produced (unless objected to). It would be unfortunate for a mediation to stall because the other party does not have the information they feel is necessary to make an informed decision.

3. Contact Experts Ahead of Mediation

Although you may not have hired any experts yet, when evaluating your case before attending mediation, consider whether you need to retain an expert or at least consult with one. For instance, if there is real property at issue in a divorce, a frequent dispute between the parties is the value ' one party claiming it is an asset worth a certain amount of money, the other party claiming that the asset is worth less or is even underwater because of the mortgages associated with the property.

In such an instance, before you attend mediation, consult with an appraiser or realtor to get an appraisal or at least a comparative market analysis (CMA) so that an objective number can be utilized at the mediation. Other examples include conferring with a CPA concerning a certain asset owned by the parties, or regarding tax implications related to a contemplated distribution. Having these conversations before the mediation can be helpful in shaping your case and allowing you to know the entire picture once the mediation proceeds.

If an expert has already been retained and is anticipated to provide a report, such as a guardian ad litem's findings and recommendations, or a business valuation, make sure to have this analysis beforehand, as well as to circulate it to all necessary parties. If it is your intent to rely upon this report, or the expert's analysis concerning a certain issue (for instance, the other party's income and ability to pay support), it may be helpful to have the expert in attendance at the mediation.

4. Prepare, Prepare, Prepare

Once you have reviewed the file and gathered all necessary information, whether obtained from discovery, the client, or an expert, it is important to prepare for the mediation. You would be surprised how often attorneys simply show up at a mediation with a file in hand and nothing more. Preparing is crucial to a productive, efficient and ultimately successful mediation.
It entails:

Drafting the settlement agreements. In Florida, for instance, parties to a divorce often memorialize their settlement in two separate agreements: 1) a Parenting Plan, which sets forth all of the parenting issues, such as timesharing/contact, holiday schedules, decision-making authority, extra-curricular and summer activities, medical needs of the children, educational issues, and the like; and 2) a Marital Settlement Agreement, which sets forth all of the financial and other issues, such as equitable distribution of the marital estate, alimony, and child support. These documents are usually quite lengthy (sometimes more than 30 or 40 pages depending on the issues covered therein) and require significant attention to myriad details. It is helpful, therefore, to have thought through the language and provisions to be included in these documents before the mediation so that, in the rush of a mediation, after clients have been sitting through hours of discussion, they do not then have to wait impatiently for an agreement to be drafted.

In addition to helping the attorney, it is valuable to have the client review these draft agreements in advance of the mediation as well. This familiarizes them with the terms of the documents so they are not forced to digest all of the legalese in the hurried pace of mediation. It also allows them to become a part of the process early on so that they feel as though they have contributed to their case.

Doing the research. In addition to drafting the settlement documents, be sure to do the research and necessary calculations to support your positions. For instance, do you need supporting case law as to a particular issue? Or, maybe, for example, a secondary article explaining how your particular state handles the formula for determining the marital and non-marital values associated with unvested stock options, or with passive appreciation in real property? Similarly, if child support or alimony is at issue, it is beneficial to run calculations for various scenarios you anticipate being at issue so that both you and the client have an idea of the range that can be expected to be discussed at mediation. Having already done both the research and the math ahead of time, these facts and numbers are likely to be what is relied upon at mediation and also help to avoid any errors at the same time.

Preparing everything else. If the goal of mediation is to resolve all outstanding issues in the matter, try to prepare everything you will need to do so, such as the Final Judgment, so that opposing counsel can review and approve it at the mediation; the power of attorney or other such documents necessary for the parties to transfer title to one another's vehicles; the deeds necessary to transfer real property; and the income deduction order/income withholding order, so that it is ready for the judge to sign. This enables both attorneys to save time after the mediation on “wrap-up” matters, thereby allowing their clients to get to the final hearing as quickly as possible to bring the matter officially to a final conclusion.

5. Meet with the Client

Prior to the mediation, but after you have sufficiently prepared, set a time to meet with the client. This meeting is crucial. Most clients are wholly unfamiliar with the mediation process; meeting with them in advance of the mediation provides the opportunity to get them acquainted with it. First, explain what mediation is and how it is different from a court proceeding (i.e., explain that mediation is a form of alternative dispute resolution, that the mediator assists the parties in reaching a resolution, but is not a judge and, therefore, is not a decision-maker, and that the process is confidential and protected from disclosure in the event it is unsuccessful). It often helps clients to know what to expect and that, while you encourage settlement, they will not be forced to reach an agreement at that time (i.e., they have control).

The meeting with the client is also important for discussing strategy for mediation, reviewing the aforementioned documents once again, establishing the client's goals and hashing out options for mediation in conjunction with those goals. During this discussion, it is advantageous to provide the client with realistic expectations so that s/he understands that, while you may take certain positions and request certain relief at the mediation, this may not be what is ultimately agreed to or what they would be entitled to should the matter proceed to trial. In this regard, a client should be made aware of “worst-case” scenarios, as every case has a weakness. Such realistic expectations are vital because successful mediations require compromise from both parties.

In addition to legal strategy, the client meeting is an opportunity to prepare the client for the emotional side of mediation. Explain that both parties are often dealing with various emotions (whether sad, angry, scared or frustrated) and will be bringing these emotions with them to the mediation. As a result, it is important for the client to be patient and flexible. Further, as mediations can become emotionally charged, advise clients that they can take a break from the mediation at any time, and can always speak with you alone if necessary. In discussing this aspect of the mediation, use this opportunity to assess the client's mental state and determine, for instance, if it should be recommended that they speak with a counselor before the mediation.

6. Educate the Mediator

In advance of the mediation, utilize your hard work and preparation to your advantage: Send it to the mediator. One effective way to accomplish this is to prepare a narrative letter or mediation statement, which explains to the mediator the parties' history and background, as well as the issues in the case. Take this opportunity also to emphasize important considerations that may not be gleaned from a review of the pleadings and to advocate your client's concerns and positions. After reviewing this mediation statement, the mediator will come to the mediation understanding your client's perspective, concerns and goals. This can be especially valuable as the other side may not take the time to prepare such materials for the mediator.'

With the mediation statement/letter, include a notebook of all the necessary pleadings (Petition, Financial Affidavits, etc.) and mediation documents (the draft Marital Settlement Agreement, child support guidelines, etc.). The mediator will appreciate the time and effort you have taken to get him/her up to speed; further, it will demonstrate that you are taking the mediation process seriously. When creating the notebook for the mediator, make extra copies for yourself and the client so that everyone can easily refer to the same materials during mediation, e.g.: “If you flip to Tab 4, you will see that her expenses show ' “

7. Initiate a Dialogue with Opposing Counsel

Depending on the case, it may be helpful to initiate a dialogue with opposing counsel before the mediation. For instance, a telephone conference can be set to discuss proposals or at least outline the issues needed to be addressed at mediation. A letter can also be sent to opposing counsel enclosing the draft settlement documents and explaining your preference to work from them during the mediation. Providing these documents, which may contain either blanks to be filled in at mediation or your client's suggested proposals, prior to the mediation, ensures that any “shock” or “surprise” from the other side is handled before the mediation, giving the other party a chance to digest your positions and speak with his/her attorney about them. By addressing the inevitable questions with opposing counsel beforehand, you ensure that both parties are prepared for mediation because everyone is on the same page.

8. Make Sure You Are Prepared

After you have prepared everyone else, now make sure you are ready as well. Confirm again that you have all mediation materials and extra copies of any necessary documents. If you are traveling to a different office, bring a laptop with all of the documents already uploaded so that they can be easily amended during the mediation. Also, prepare an outline of the issues and an “opening statement” if this is how your mediator normally begins a mediation. Last, be ready to be creative. Mediation provides the chance to come up with solutions that may not be possible at trial. Being creative will enable you to come up with solutions that work to create a global settlement agreement for both parties.

Rebecca Palmer, a member of this newsletter's Board of Editors, leads the Family & Marital Law practice at Orlando, FL's, Lowndes, Drosdick, Doster, Kantor & Reed, P.A. Crystal E. Buit is an associate in the Family and Marital Law practice.

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