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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. The child support award is many times what the custodial parent earns, and exceeds the actual costs of providing for the children's needs. My fiance and I have agreed that if we divorce, that the children will be provided for using a shared checking account like this one(http://www.mediate.com/articles/if_they_can_do_parenting_plans.cfm) to avoid the hidden alimony in Indiana's child support guidelines.

  2. Fiat justitia ruat caelum is a Latin legal phrase, meaning "Let justice be done though the heavens fall." The maxim signifies the belief that justice must be realized regardless of consequences.

  3. Indiana up holds this behavior. the state police know they got it made.

  4. Additional Points: -Civility in the profession: Treating others with respect will not only move others to respect you, it will show a shared respect for the legal system we are all sworn to protect. When attorneys engage in unnecessary personal attacks, they lose the respect and favor of judges, jurors, the person being attacked, and others witnessing or reading the communication. It's not always easy to put anger aside, but if you don't, you will lose respect, credibility, cases, clients & jobs or job opportunities. -Read Rule 22 of the Admission & Discipline Rules. Capture that spirit and apply those principles in your daily work. -Strive to represent clients in a manner that communicates the importance you place on the legal matter you're privileged to handle for them. -There are good lawyers of all ages, but no one is perfect. Older lawyers can learn valuable skills from younger lawyers who tend to be more adept with new technologies that can improve work quality and speed. Older lawyers have already tackled more legal issues and worked through more of the problems encountered when representing clients on various types of legal matters. If there's mutual respect and a willingness to learn from each other, it will help make both attorneys better lawyers. -Erosion of the public trust in lawyers wears down public confidence in the rule of law. Always keep your duty to the profession in mind. -You can learn so much by asking questions & actively listening to instructions and advice from more experienced attorneys, regardless of how many years or decades you've each practiced law. Don't miss out on that chance.

  5. Agreed on 4th Amendment call - that was just bad policing that resulted in dismissal for repeat offender. What kind of parent names their boy "Kriston"?

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