Mediation: Tips for Parties and Lawyers

The experience of going to mediation after mediation with trusted, or at least grudgingly civil, colleagues can be very uplifting. What does that mean? I have other posts about mediation, and cover it thoroughly on my website,

It means that when two skilled lawyers, and a skilled mediator, backed by a strong judge who expects them to do their job, get together, good things happen. Sometimes there is a catharsis, and people leave feeling all warm and fuzzy, but, since we don’t serve martinis, or wine spritzers, that’s pretty rare. We do serve healthful, and not so healthful snacks and beverages.

What is NOT rare, is the parties sometimes surprise themselves, by assessing the costs and risks, and by putting their children ahead of “the fight”, as WVU College of Law Professor Tom Patrick calls it, to reach an agreement on all issues.

Such mediations also solve disputes over property and debt, retirement assets, alimony, will disputes, and right of way, boundary line, and contract disputes. When it is between sisters (whoa! Siblings can fight!), there can even be hugs, tears, and lunch together afterward.

My gripe is the “school of thought” that says “lawyers get in the way of mediated settlement”. My answer. “Those lawyers have not “done their homework”, and probably haven’t been to mediation training. Family law mediation training requires five days. Basic mediation training is 2 days. Advanced mediation training, and updates are one day each. I have attended it all, and often been the “squeaky wheel” spouting “heresy”. (Note; thank you to Professor Patrick for recently asking me to participate in training of law school and college students for magistrate court mediation training. Very rewarding to see so many fine young people interested in helping people resolve their conflicts. J.B.H. 2-9-2012.)

I have been pleased to watch Tom Patrick’s evolution. I have been to many of his marvelous mediations, and tried to be helpful and innovative. Tom is a master, and I now agree with most of his views.

If you have to give your client “bad news” regarding the cost of a trial, or the risk of a bad decision, lean on the mediator. He/she can be the bad guy, and the lawyer, the reluctant, but helpful advocate.

But, we have some judges who require “two hour face to face meetings”. If you like the new form of cage fighting, lots of hoopla, blood, tattoos, and obscenity, just attend a few of those mandated sessions. The lawyer who buckles down, puts appropriate pressure on the client to “meet partway” and gets a settlement, often gets fired when the client gets home and tells Mom, Pop, or the new significant other that they reached agreement. “YOU AGREED TO WHAT!”. That just happened to me. I put aside every dirty trick the other side did in the previous year, focused on the child, my client’s budget, her emotional well-being, and even her safely, negotiated a tentative settlement, and got fired the next morning!

The lawyers who go to mediation with their clients should do what any good lawyer does. I will skip how to prepare for a Personal Injury Claim mediation, which is a specialized “animal”.

Family Law Counsel should make sure they meticulously identify all assets and debts, and categories which were acquired during the marriage, and which were “separate” from the marriage. I have an Excel Workbook Template that really helps me identify those items, total the gross worth, and the debt, and calculate the net worth. The second worksheet allows us to put together the client’s proposed distribution of the assets and debts,and see, to the dollar (rounded) how close to their proposal is 50%/50%. Most attorneys do not. Some use a yellow pad and calculator, and some use “canned” software. Building those spreadsheets really help us envision our options. And, we can change a number, and all the totals and subtotals change. It is a great tool for playing “what if”.

Where custody is an issue, the “caretaking functions worksheets”, for the one and two year periods prior to separation, are critically important. The judge relies on them, and the supporting evidence, so go to mediation without them at your peril.

Where alimony is at issue, the clients MUST read the  alimony statutes, AND fill out a worksheet. There are 20 factors effecting alimony. I am amazed at the attorneys who do not educate their clients. Most marriages are not 30-50 years, so “rehabilitative alimony” is more common. In those cases the lawyer and client must put together a “plan of economic rehabilitation”. Be innovative and realistic (Not everyone gets to go to Harvard.), and work hard at it. If you do,  the issue may be resolved without a trial.

Know your mediator.  A 35 year old mother of two, former domestic abuse assistant prosecutor, may be best for some cases, grizzled veteran male mediator for another, and young, intense, female divorce lawyer for another.

What is not needed is a mediator who gives up easily, or lacks originality, or passion, or who sees every case differently than your lawyer.

The  opinions here are “heresy” in 80% of the State of WV, but I challenge a debate.

This post was written by Burton Hunter

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