You Aren’t Going to Mediation! (Now what will you do?)

This article is aimed primarily at family court lawyers, but lay people may benefit.
Let’s keep something in mind. Personal injury and civil mediation are different from family mediation. People are representing themselves in family court perhaps 70% of the time and somehow surviving. There are mandatory forms, parenting classes, and a form of “one size fits all justice”. I do not recommend it, but it’s happening.
I have dealt with self-representation (pro se) in family court elsewhere. Short answer, “Don’t do it!”

Circuit Court is no place for the self-represented (pro se) litigant! Danger lurks there. It is more formal than family court so even more problematical.
So let’s focus on family court. Under what situations will family court litigants not go to mediation? Here are some examples:
1. The Family Court does not send them, or the Court’s “Case Coordinator” screens them out. It happens all too often.
2. The parties can’t afford mediation but don’t qualify for free mediation.
3. The parties are litigating in a part of the State where lawyers do not typically mediate their cases.
4. Or the litigation is in a part of the state where parties’ lawyers tend not to attend mediation!
I am a strong proponent of mediation in family court and civil court and am sorry it is not used in other kinds of cases. But what if it just is not going to happen? Let’s consider negotiated settlement, especially face to face settlement meetings:
1. Court mandated face to face settlement meetings can be powder kegs. Family Court “screens for mediation” but not for these much more volatile and dangerous meetings! Judges should be made to watch some of those fiascos!
2. We family law lawyers who mediate a lot tend to lose our appetite for “face to face”. Guess we are “spoiled”.
3. Even in mediation, we tend to caucus before the initial greeting and send the mediator back and forth. But, if there is no mediator, what to do?
4. I suggest to my colleagues that in those cases we need to sharpen our negotiating skills.
5. I find written offers back and forth wasteful and unproductive.
6. But, the era of meeting with the client, dictating the offer, typing it up, affixing a stamp, waiting for the pony to deliver it, making an appointment with the client, reviewing the offer, dictating a response, typing it up, affixing a stamp, and sending the pony back, is over. Those were dark ages for written negotiations.
7. Now we can type the offer with the client present, copy the client, and perhaps send offers and counter offers 2, 3 times in a day. For the right parties and the right lawyers that can work, but the old model was broken and is outmoded. It took weeks to do what we can do in mediation in an hour.
8. If we are going to meet and negotiate, we must get new tools and sharpen the old ones.
9. Read, read, read, how to negotiate. And attend continuing legal education. It is a skill we can learn. It is a skill we can polish. If you do not train to learn to negotiate, you will be terrible at it.
10. Somehow figure out how to make your case w/o alienating the other side.
11. Do not overreact, especially if the other side is ham-handed. Many lawyers became lawyers because they were born ham-handed! From my experience with younger lawyers, I fear they are teaching truculence in law school.
12. If you are easily intimidated, this line of work may not be for you. There is no bailiff, and bullies exist. I am not a bully, but bullies don’t affect me. That’s a strength, I hope. There are good women negotiators. They can deflect and shame the bully. The best of us use what God gave us.
13. Be prepared! Here are some ideas:
a. The Family court rules require full financial disclosure and witnesses and exhibits. Share and bring your documentation!
b. Printed balances of all monetary accounts, at time of separation and now.
c. Printed balances of all unpaid financial obligations, then and now. Documentation of bills you have paid.
d. Have printed values of all retirement plans, pensions, IRA’s, 401 K’s, profit sharing.
e. If it is “defined benefit” plan, meaning it does not have a balance but has a “present value” based on actuarial principles, see if you can get that present value from the “plan administrator” or a forensic accountant. Family businesses often are worth little beyond the income the owner takes.
f. If there is a family business, you have work to do figuring out its value or be prepared to sell the assets and divide the proceeds. You may need to hire a business valuation expert. In that event, you had better have a lawyer and had better budget for mediation! I like to propose to share the cost of appraisers and use one for each kind of property instead of two. Real estate, personal property, and businesses are three kinds of appraisers. Perhaps an auctioneer.
g. If alimony is an issue, identify the factors, from the 20 enumerated by the statute, that impact the length, amount, and nature of the alimony. Fault is only one factor.
h. Find a formula, Judge Goldberg’s, the Va. formula, or something that you can hang your calculation on. If your judge uses a one, you better find out which one and prepare.
i. Come to the table with constructive “win-win” ideas. That is essential.
j. Be wary about separating the parties and walking back and forth. Your client can imagine all manner of nefarious sell-outs going on in that other room. She/he is thinking, “You are letting that bastard/bitch ‘snow you’ “. I have learned not to do it.
k. Have the tools to create the documents, the Property Settlement Agreement, Parenting Plan, and Final Order. I use document assembly software that is compatible with Microsoft Word, Pathagoras, to “fill in the blanks” and print near final drafts. You should too!
l. For custody issues, you must know how to calculate child support, carefully prepare caretaking functions worksheets for the one and two years prior to separation, have the children’s medical records if relevant, and have a detailed list of concerns and goals. It is imperative to have a good parenting plan template.
m. Again, if there are abuse issues, substance or domestic, serious alimony issues, or substantial property or debt, why are you there without a lawyer? You are over your head!
n. If lawyers did these things, many cases would not require a mediator, but a good mediator can smooth the bumps, keep abrasive lawyers apart, filter the insults, and even insist on taking breaks to obtain more facts, online or by phone.
o. Mediators can make up for the faults of the litigants and their lawyers and they can become an ally of the lawyer in helping the party assess risk benefit. Good lawyers and mediators NEVER put undue pressure on a party.
p. IN SUMMARY, well prepared litigants with positive attitudes, and competent lawyers with negotiating skills are perfect compliments to competent mediators. Together they can be a power team in achieving a negotiated settlement.
So, mediate, mediate, mediate, but if no mediation, learn how to negotiate! Where possible, hire a good lawyer!

This post was written by Burton Hunter

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