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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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  3. The practitioners and judges who hail E-filing as the Saviour of the West need to contain their respective excitements. E-filing is federal court requires the practitioner to cram his motion practice into pigeonholes created by IT people. Compound motions or those seeking alternative relief are effectively barred, unless the practitioner wants to receive a tart note from some functionary admonishing about the "problem". E-filing is just another method by which courts and judges transfer their burden to practitioners, who are the really the only powerless components of the system. Of COURSE it is easier for the court to require all of its imput to conform to certain formats, but this imposition does NOT improve the quality of the practice of law and does NOT improve the ability of the practitioner to advocate for his client or to fashion pleadings that exactly conform to his client's best interests. And we should be very wary of the disingenuous pablum about the costs. The courts will find a way to stick it to the practitioner. Lake County is a VERY good example of this rapaciousness. Any one who does not believe this is invited to review the various special fees that system imposes upon practitioners- as practitioners- and upon each case ON TOP of the court costs normal in every case manually filed. Jurisprudence according to Aldous Huxley.

  4. Any attorneys who practice in federal court should be able to say the same as I can ... efiling is great. I have been doing it in fed court since it started way back. Pacer has its drawbacks, but the ability to hit an e-docket and pull up anything and everything onscreen is a huge plus for a litigator, eps the sole practitioner, who lacks a filing clerk and the paralegal support of large firms. Were I an Indiana attorney I would welcome this great step forward.

  5. Can we get full disclosure on lobbyist's payments to legislatures such as Mr Buck? AS long as there are idiots that are disrespectful of neighbors and intent on shooting fireworks every night, some kind of regulations are needed.

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