As a divorce lawyer I often attend and take part in divorce mediations. I recently completed a mediation for a client that resulted in what I felt was a really good and fair settlement for her. During this mediation I was accompanied by a new associate who was attending a mediation for her first time. And since this was her first time to attend a mediation I asked her to write down her thoughts about it so that we could share her perspective here on the blog. I hope by sharing her thoughts it helps those of you who have not yet attended a mediation to better understand what occurs.
The following is what she wrote:
Today I attended my first mediation, and as I reflect on what I learned, several things come to mind.
Coming in with an open mind is essential to mediation success. With that being said, however, the parties should be careful not to be so open-minded that their brains fall out. The parties should enter mediation with some idea of what they really want, what would satisfy them, and what would be their absolute bottom line.
What the parties should NOT do is enter mediation with unrealistic expectations. The responsibility for creating and managing expectations lies, at least in part, with the attorneys on either side. There are law firms in this city – we aren’t one and luckily, we did not have one on the other side in this mediation – who will feed their clients unrealistic promises of what they are entitled to. While this approach has the potential to make the firm a lot of money (and cost the client a lot of money), it falls apart in mediation because the mediator, generally speaking, is going to tell it like it really is about the state of the law. The mediator has no interest whatsoever in “puffing up” the client, so in mediation, the client of such an attorney is going to figure out that his or her attorney has over-promised. The client will not be happy when he or she discovers this. Attorneys have a vital role to play in explaining to their clients what they can expect in the mediation.
For what it’s worth, in this particular mediation, I believe Jami did an excellent job in letting his client know what to expect, what would be fair, and what would need to be negotiable. This was, at least in part, because the client did an excellent job both in educating herself about the mediation process and in providing our office with the information we needed regarding the items in issue.
Preparation and Organization
The attorneys and the parties have spent many hours developing the case prior to mediation. The mediator does not, cannot, and probably never will know as much about the case as the parties and their attorneys do. Therefore, a vital part of the preparation process is finding a way to inform the mediator about the case in a concise, clear, direct manner. Before mediation, I was convinced that this was important. Now I know that it is absolutely crucial. The mediator has to be able to wrap his or her mind around all of the issues in controversy between the parties. The person who goes into mediation disorganized and unprepared may come out disappointed. The purpose of mediation is to reach a fair result that both parties can live with. However, if the parties are less than clear about what assets are out there, there is no way for them or their attorneys to decide whether a given settlement is fair.
Sometimes parties go into mediation with very few “sticking points” or issues in controversy. They may have agreed on everything except who has parenting time with the child on Christmas Day. However, it’s often the case that the parties have problems communicating with each other and haven’t agreed on anything at all. When this is the situation, things can get extremely complicated and disordered in mediation. The less organized the mediation is, the less likely the parties are to settle. If they do not settle, then all they will get out of the day is frustration, a bill from the attorneys and the mediator, and no satisfaction. Preparation and realistic expectations are the key to a truly satisfying mediation process.
In the mediation I attended, both attorneys were well-organized and prepared to negotiate. They had carefully addressed all the issues with their clients, and had spoken with them to set realistic expectations. I don’t know what happened in the opposing party’s room, because of course I wasn’t allowed in there, but in our room, the mediator never said anything about the law that surprised our client at all. Our client knew what she was entitled to have, and she knew what would satisfy her. She went in with realistic expectations, and she came out with a settlement she could more than live with. I’m convinced that’s the best possible outcome of mediation, and when attorneys work hard to prepare their clients to negotiate, they maximize the chances that both parties will come out of the mediation with exactly that result.