Determining Whether to choose Mediation

In general, mediation is less costly, both financially and emotionally, than going to trial. The parties retain control over the result and, to a certain extent, the cost. This creates powerful reasons to try the process.

Mediation can be used in nearly any time of case, including all aspects of family law, probate matters and general civil litigation.

Mediation is a good option when: the parties come into the process determined to settle and avoid trial; they have very few issues to resolve, or ones that are not especially complicated; they have decided they want to limit their fees; their fees have begun to climb and they see mediation as a viable opportunity to avoid further expenses; when there is little or no hostility between the parties; and when a trial is fast approaching. Mediation might be the last chance to have control over what happens.

Ordered by the Court. Sometimes mediation is ordered by the Court. Then, you have no choice. In some courts, mediation, or some other settlement effort, is a prerequisite to trial, and a court will not hear a case until after the parties have mediated. Knowing that mediation will be ordered, however, a party often still can take control of the situation and mediate when best for them, instead of waiting for the judge to order it.

Preparing for Mediation

Identifying The Issues

Prior to attending mediation, your attorney should discuss the process with you so you know what to expect. A big part of preparation is deciding, in advance, what

issues there are to resolve. The best way to ensure that each issue has been carefully considered, and resolved, at mediation is for your attorney to prepare a proposed agreement, in advance of mediation, that you are willing to sign. This document should cover all issues. At mediation, it can be used as the basis for discussions. The mediator can then use the draft as the start of a final version. (It is important that you and your attorney keep track of important points. The mediator might not).

As part of this preparation process, you should also identify your opening position and your final position. Each side generally shares their opening position early on in the mediation. Knowing your bottom line allows you to know when it is time to call it a day, so you do not have “buyer’s remorse” by conceding too much.

In the alternative, at the very least, a checklist is important. Often, prior to mediation, the sticking points have been shared with the other side, and, therefore, both sides come into mediation knowing what the possible problems are.

Confirm whether attorney attends mediation with client.

Someone with very complex issues should attend mediation with an attorney, especially complex financial issues.

Someone who is nervous or intimidated about the process or the other side should attend with an attorney.

Anyone who wants an attorney should bring one. (In some counties, this is not always the trend).

Some issues are less complex (such as coming up with a timesharing schedule) and the parties might decide to attend mediation without any attorney. In this situation, the attorney can be available “on call” in their office to discuss any glitches that arise.

A growing trend is for parties to attend mediations several times throughout the process, rather than just once, with or without attorneys, until all issues have been resolved.

Attending

Confidentiality. It is important to know that the mediator can’t be brought into court to testify about what happens in mediation and that, like Las Vegas, “what happens in mediation stays in mediation.” The mediator will make that clear up front before getting started. Neither party (nor the attorneys) can be asked what happened in terms of “offers”, either. When everyone is bound by confidentiality, the parties are more likely to open up and reveal what is important to them, which often leads to settlement. However, that information cannot be revealed at trial. (There is a very significant exception, which is that a mediator cannot keep any abuse allegations confidential). You need to be very careful when sharing information with the mediator in caucuses, or breakout sessions, to make clear to the mediator which information you do not want shared with the other party. If this is not made clear, the mediator may reveal the information to the other side, believing he or she has permission.

What Sessions look Like. Sometimes the mediator meets with everyone in the same room for the entire mediation until the parties reach an agreement. Sometimes the parties start in the same room for introductory steps, but then split off into different rooms and the mediator conducts shuttle diplomacy, going back and forth between rooms, trying to work out an agreement. Occasionally, the parties remain in separate rooms the entire time. Every case is different.

Get it in writing. Something that cannot be impressed upon you enough is that, if you walk out of mediation without something in writing, signed by both sides, you do not have an agreement. By the same token, the converse is also true. Once the parties have executed an agreement, it is binding on the parties. It is an enforceable order, just as valid as if the judge ruled from the bench. The process is not very formal, and it is easy to get lulled into forgetting this.

A mediation is not a failure if you do not resolve all issues. Sometimes, the parties will resolve all but one issue at mediation. They might decide to put the resolved issues in writing, and only reserve the one remaining issue for another day- maybe another mediation session or maybe take that one issue to court.

Breaks. It is important to know that you can take breaks. It is important to know that you can speak with the attorney privately without anyone around. Too many people feel pressure during mediation (sometimes from the other party, sometimes from an attorney and even sometimes from the mediator, whose role is to try to bring the parties to closure on as many issues as possible) to stay at the table no matter what and negotiate until they are ready to collapse. It is perfectly acceptable to take a break, so you can speak with the attorney privately with no one else around. You also might want to consult with your financial planner or accountant. Or just to collect your thoughts!

Leaving. Finally, even though it is a last resort and parties must mediate in good faith, a party is allowed to leave mediation if it is going nowhere. This is a very serious decision and not one to be made lightly.