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IBA: 'Shut Up Already' and Four Other Top Tips for a Successful Family Law Mediation

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By Elisabeth Edwards and Holly Wanzer of Jocham Harden Dimick Jackson LLP

Have you gone a little light on mediation preparation lately? It’s time to jump start your mediation mojo with some tips about how to get in, get settled and get out of the way.

Know your own case. This is sure to elicit a giant “No Kidding”, but it is amazing how many attorneys waltz into mediation with only a vague idea of the case. Mediators love, love, love the attorneys who take mediation as seriously as trial. They know every issue and their client’s position on each. They can articulate best and worst case scenarios, so they see the “middle ground” where settlement will likely occur. They know what their client’s hot-button issues are so they are not wasting time arguing over Aunt Mary’s World’s Fair spoon collection when their client just wants the blender. Be as ready to present the marital estate and child support calculations in mediation as you would be in court. (P.S. The prepared have fewer ten-hour marathons and more “it’s only 4:00 p.m. and we’re done…” days).

Prepare your mediator with the right information. The mediator has the pleasure of facing that sticky, icky issue in your case that is preventing it from settling. In order to settle, you are going to have to talk about it and all its ugliness. You do your client a giant favor by ’fessing up before mediation. Is it infidelity, gambling debts, passive-aggressive, narcissistic, overly emotional parties? Spill it. Please. (Even if the problem is your client). Hours of mediation can be saved if you craft a useful Confidential Mediation Statement instead of a 20-page dissertation of the relevant case law. The mediator does not need to read a treatise, but would appreciate the information which impacts how he will present information in each room. What is more beneficial is a list of the pending issues, including your client’s starting place and bottom line, and an explanation of the dynamics of the case. If you know that your client needs some “tough love” as to what is reasonable, or that one party will be extremely emotional, tell the mediator. Finally, is there a pending offer? Articulate it in your statement. You’ve just jumpstarted the mediation.

Prepare your client. Talk with your client prior to mediation to let her know the best and worst case scenarios if she goes to court. Explain that at mediation she will get neither. Mediation is compromise, and the client will need to do some horse-trading to end up with an agreement. Your client also needs to understand while it’s possible she will go to court and get her “best day”, there is tremendous value to ending the risk that she will get her “worst day”. Not to mention that a big win in court can result in a Notice of Appeal and the start of an expensive Round 2 in the appellate court.

Don’t draw a giant, grandstanding line in the sand. Nothing is more frustrating than the attorney who refuses to make counteroffers (“we stand on our last offer even though we’ve only been here two hours”). Mediation is not Theatre of the Law for your client’s entertainment. It is a serious attempt to find a solution. Saying no without suggesting another option or storming out prematurely in protest is a waste of your client’s time and money. If you don’t even give it a go, you may never know that the other side was just posturing and was prepared to meet your terms. There is a time to inform the mediator that your client is making a “final offer”, but that time is rarely 10:30 a.m.

Shut up already! Your job is more advisor than mouthpiece. Kindly shut up and let the client talk. Chip in your advice when needed, but don’t take over. The mediator will need your help with reality testing. While your mediator cannot opine as to what Judge So-and-So would do, the mediator can ask YOU to opine. Also, please remember who the boss is (and it ain’t you). There are a million reasons that have nothing to do with legal precedent that might make your client inclined to settle a case about his kids and his stuff. Even if you think a better outcome is possible at trial, the decision is your client’s. Advise the client if you don’t recommend the deal; then get out of the way and draft a CYA letter when you return to the office.•

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  1. It appears the police and prosecutors are allowed to change the rules halfway through the game to suit themselves. I am surprised that the congress has not yet eliminated the right to a trial in cases involving any type of forensic evidence. That would suit their foolish law and order police state views. I say we eliminate the statute of limitations for crimes committed by members of congress and other government employees. Of course they would never do that. They are all corrupt cowards!!!

  2. Poor Judge Brown probably thought that by slavishly serving the godz of the age her violations of 18th century concepts like due process and the rule of law would be overlooked. Mayhaps she was merely a Judge ahead of her time?

  3. in a lawyer discipline case Judge Brown, now removed, was presiding over a hearing about a lawyer accused of the supposedly heinous ethical violation of saying the words "Illegal immigrant." (IN re Barker) http://www.in.gov/judiciary/files/order-discipline-2013-55S00-1008-DI-429.pdf .... I wonder if when we compare the egregious violations of due process by Judge Brown, to her chiding of another lawyer for politically incorrectness, if there are any conclusions to be drawn about what kind of person, what kind of judge, what kind of apparatchik, is busy implementing the agenda of political correctness and making off-limits legit advocacy about an adverse party in a suit whose illegal alien status is relevant? I am just asking the question, the reader can make own conclsuion. Oh wait-- did I use the wrong adjective-- let me rephrase that, um undocumented alien?

  4. of course the bigger questions of whether or not the people want to pay for ANY bussing is off limits, due to the Supreme Court protecting the people from DEMOCRACY. Several decades hence from desegregation and bussing plans and we STILL need to be taking all this taxpayer money to combat mostly-imagined "discrimination" in the most obviously failed social program of the postwar period.

  5. You can put your photos anywhere you like... When someone steals it they know it doesn't belong to them. And, a man getting a divorce is automatically not a nice guy...? That's ridiculous. Since when is need of money a conflict of interest? That would mean that no one should have a job unless they are already financially solvent without a job... A photographer is also under no obligation to use a watermark (again, people know when a photo doesn't belong to them) or provide contact information. Hey, he didn't make it easy for me to pay him so I'll just take it! Well heck, might as well walk out of the grocery store with a cart full of food because the lines are too long and you don't find that convenient. "Only in Indiana." Oh, now you're passing judgement on an entire state... What state do you live in? I need to characterize everyone in your state as ignorant and opinionated. And the final bit of ignorance; assuming a photo anyone would want is lucky and then how much does your camera have to cost to make it a good photo, in your obviously relevant opinion?

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