ILNews

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

Back to TopCommentsE-mailPrintBookmark and Share
wanzer-holly-BWmug Wanzer
edwards-elisabeth-BWmug Edwards

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.•

ADVERTISEMENT

Post a comment to this story

COMMENTS POLICY
We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
 
You are legally responsible for what you post and your anonymity is not guaranteed.
 
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
 
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
 
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.
 

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by

facebook - twitter on Facebook & Twitter

Indiana State Bar Association

Indianapolis Bar Association

Evansville Bar Association

Allen County Bar Association

Indiana Lawyer on Facebook

facebook
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. I am compelled to announce that I am not posting under any Smith monikers here. That said, the post below does have a certain ring to it that sounds familiar to me: http://www.catholicnewworld.com/cnwonline/2014/0907/cardinal.aspx

  2. As an adoptive parent, I have to say this situation was as shameful as it gets. While the state government opens its wallet to the Simons and their friends, it denied payments to the most vulnerable in our state. Thanks Mitch!

  3. We as lawyers who have given up the range of First amendment freedom that other people possess, so that we can have a license to practice in the courts of the state and make gobs of money, that we agree to combat the hateful and bigoted discrimination enshrined in the law by democratic majorities, that Law Lord Posner has graciously explained for us....... We must now unhesitatingly condemn the sincerely held religious beliefs of religiously observant Catholics, Muslims, Christians, and Jewish persons alike who yet adhere to Scriptural exhortations concerning sodomites and catamites..... No tolerance will be extended to intolerance, and we must hate the haters most zealously! And in our public explanations of this constitutional garbledygook, when doing the balancing act, we must remember that the state always pushes its finger down on the individualism side of the scale at every turn and at every juncture no matter what the cost to society.....to elevate the values of a minority over the values of the majority is now the defining feature of American "Democracy..." we must remember our role in tricking Americans to think that this is desirable in spite of their own democratically expressed values being trashed. As a secular republic the United States might as well be officially atheist, religious people are now all bigots and will soon be treated with the same contempt that kluckers were in recent times..... The most important thing is that any source of moral authority besides the state be absolutely crushed.

  4. In my recent article in Indiana Lawyer, I noted that grass roots marketing -- reaching out and touching people -- is still one of the best forms of advertising today. It's often forgotten in the midst of all of today's "newer wave" marketing techniques. Shaking hands and kissing babies is what politicians have done for year and it still works. These are perfect examples of building goodwill. Kudos to these firms. Make "grass roots" an essential part of your marketing plan. Jon Quick QPRmarketing.com

  5. Hi, Who can I speak to regarding advertising today? Thanks, Gary

ADVERTISEMENT