Mediation: Practical Considerations
I last wrote about mediation in my blog, “Perspectives of a Small Town Lawyer” on Sat., June 9, 2012: http://tinyurl.com/7q23hda.
In that article I explained some of the differences in family and civil mediation. Yesterday I mediated a case, and there were only two things agreed to, the payment of money and the dismissal of a lawsuit. Obviously, that was a civil case.
In a typical divorce with children, property and alimony, issues, there may be 50 things agreed to.
Having successfully mediated three cases this week, a custody battle, the civil case that I mediated, and a divorce between an older couple, I am emboldened to make some suggestions. I shall post this in my other blog also since I believe other lawyers and mediators can benefit from it as can parties facing mediation.
These are things I have learned:
1. Things that promote a mediated settlement:
a. Parties who know what the heck they are getting into. It takes real work to prepared a person for mediation; not just my “object lists” of facts and events, but the emotional and mental challenge of serious negotiations.
b. A GOOD mediator. They come in all ages, sizes, and genders, but I know one when I see one. Humor helps, experience, intelligence, a willingness to take chances, originality, energy, and an ability to make sure the parties can see she/he is sincerely interested in helping each side, and their children if their are children’s issues.
c. TWO GOOD LAWYERS. This is a tough one. Lawyers come in all forms too, but there are adversarial lawyers, lawyers with no sense of humor, lawyers lacking experience, lawyers without imagination, lawyers who have not bothered how to learn to negotiate themselves out of a paper bag, and lawyers who make a deal and then try to wheedle and nuance the final documents to give their clients an advantage.
d. The good lawyer in a mediation is exceptionally candid with his client, the mediator, and the other side, while always knowing to keep a few of his cards out of sight.
e. She is pragmatic and innovative. She works with the mediator, to educate, concede weaknesses, offer suggestions, accept guidance, and BE PREPARED. Perhaps I was not clear here. I said BE PREPARED!
2. Things that stymie mediation.
a. No lawyers at mediation.
b. A mediation with lawyers who don’t trust or respect one another. Recently, I proposed just one thing. The parties were fighting over selling the former family house per court order. One party had occupied the house, and the other spouse suspected a pigsty. The suggestion was, meet at the house, with parties, their lawyers, and the sales agent:
i. The sales agent could advise of anything that was going to interfere with a sale for fair market value.
iii. The lawyer receiving the suggestion actually accused the lawyer who wanted to facilitate the sale of desiring to “pad your fee”, and later demanded a “list of every issue you want to cover at mediation because we are not going to talk about certain issues”.
iv. Talk about blowing a mediation sky high. That sure did it, and, no doubt, that lawyer conveyed to her client her lack of trust and respect for the other party’s lawyer.
v. Because of that lawyer’s ineptness, that case went to trial instead of settling.
c. A mediation where a lawyer or mediator lacks the qualities of the first list above.
d. A mediation where one of the parties, or both, is/are inflexible, stubborn, or vindictive. It is the job of a good lawyer to attempt to ameliorate these traits, if possible.
e. A mediation where the lawyer is not prepared to put a reasonable amount of pressure on her own client to appreciate the realities of a situation. “Who gets the couch” is not a “matter of principle”!
Finally, parties should never be bullied or brow-beaten into an agreement, but pointing out the financial and emotional costs, the risks, the delay, the harm to children, and the land mines ahead is an essential job of a good lawyer and a good mediator.
This post was written by Burton Hunter