Mediation Madness

1. Because mediation in Family Court began with a low budget “pilot project” in the Eastern Panhandle, too few Family Courts understand that mediation works best with a lawyer mediator, and lawyers representing the clients. It is true that this takes money and luck, but in the 20%-40% of cases where it can be done, it should be ordered! The success rate of these mediations is very high. Not so where the parties don’t have lawyers. There are a few “non lawyer mediators” who are the exception. Smart judges use them, and lawyer mediators, for self represented litigants.

2. Participants in divorce and custody mediation don’t seem to understand that a compromise is NOT likely to be that pleasant. To achieve a settlement, they are going to have to agree to something, for the sake of the children, or to avoid future expense and delay, that is not going to seem that neat a day or two later. BUT, people seem to think that their word means nothing. And, if your lawyer reminds them, “You gave your word” , they accuse him of being disloyal or not “fighting for me”. That will really helps their relationship with the lawyer! The concept, “a person’s word is her/his bond” is dead. Just ask “Coach Rod”.

3. Some Family Courts don’t particularly trust mediation, so they order the lawyers and their clients to a two hour “face to face” meeting, even when the lawyers are feuding and the clients hate one anothers’ guts.They order such meetings even when there is a history of abuse. The trouble with such meetings is the lawyers end up “the bad guys”. By pushing our clients toward reasonable compromise, we find ourselves accused of disloyalty. I would rather just try my case than be fired and accused of disloyalty by pushing for a compromise. Having a strong mediator gives the lawyer “cover”. He can agree with, even appeal to, the mediator when the tough decisions have to be made.

4. Monday morning of this week I encountered three clients, for whom we had put in hard work, reject the agreements they had negotiated. I have spent 5-6 hours fussing, saving two agreements, which the clients, having spared the anguish, will never appreciate, and the third where the client maligned, then fired, me, rather than sign the parenting plan I negotiated for her.

5. Recently, by keeping our clients in separate rooms, and expressing regret over our war of words, we lawyers began to make progress. After two plus hours and twenty trips up and down the steps, we had an agreement virtually nailed down. My client and I then drafted the parenting plan, together, word for word, and I finished the day quite proud of myself. But, when we had the client read the plan, she had changed her mind, and decided to complain about everything from my “over-billing” to my spending a suspicious amount of time (@ ten minutes) upstairs with the other lawyer and the “detested “EX” “!

6. Instead of realizing that I spared her $5000 in litigation costs, six months of incredible stress, and an uncertain result, the client wants to know where was that “aggressive lawyer” who fought the expensive paper war? Not that the paper war got good results, but then I was “putting him in his place”, which she liked. And these people claim to be fighting for the benefit of their children! Many can’t let go of the desire to beat the other party or make them suffer.

7. The clients who demand frequent and immediate attention are often the most critical of their bill. The client who follows our advice, and cooperates fully, pays our bills without complaint. Reminding them that “time is money” is of no use. To the unreasonable client, that’s just another sign of disloyalty.

8. Appreciative, cooperative, clients are a treasure, especially if they can afford to pay me. I will take all of them I can get.

Burt Hunter

This post was written by Burton Hunter