As William Wilson recently noted in his Indiana Family Law Blog, spouses often spend more time getting ready for a barbecue than they do getting ready for mediation. From my experience, I have to agree. While they are usually cheaper than going to trial, mediations involve a significant financial investment by each side, but the upside is that about 80-90% of the time, around here, a case settles in mediation. (Keep in mind that in baseball, the greatest hitters connect only 3 times out of 10.) In spite of all that potential for success in mediation, there seems to be little preparation in many cases.
What can be done to improve the odds of success or get better settlements? Here are some ideas:
- Clients should really become familiar with how mediation is practiced in their area. In Texas, we most often use the caucus method with the parties being kept in different rooms and the mediator moving back and forth between rooms. We also have attorneys present in virtually every mediation. In many other places, the parties stay in the same room throughout the process and often don't use attorneys. Both ways can be successful, but the parties should know ahead of time about the style they will encounter. Many clients have a lot of anxiety about whether they will be in the same room with their spouse. If they will, they need to be prepared.
- The issues need to be clearly identified and thought out in advance. The attorney should help the party be able to state their positions concisely. Sometimes it helps to have an extensive discussion about goals so the client and attorney both know what their objectives are.
- The attorney needs to make sure that they have all the information they need. That includes updates with current values and balances on financial records, as well as any records regarding the children. Telling the mediator that you can get certain information later, or that you left the records at home, just won't cut it. The information needs to be present, current and organized.
- Make sure the mediator gets the pleadings and any relevant information in advance so that he or she can become somewhat familiar with the facts and issues of the case. That will save valuable time for negotiations while everyone is together.
- It's helpful to prepare charts and summaries to help manage voluminous information. Having a computer and spreadsheets can also be helpful.
- Have copies of documents and paperwork for you, the other side and the mediator. It's sometimes helpful for everyone to be looking at the same records at the same time.
- Think about the best alternative to a negotiated agreement (BATNA). If you can't reach an agreement in mediation, what is the best realistic outcome for you if you go to court? Is it worth taking the risk?
- Think about the worst alternative to a negotiated agreement (WATNA). If you can't reach an agreement in mediation, what is the worst realistic outcome for you? Is it worth taking the risk?
- Spend time in advance to brainstorm possible solutions that you might propose in negotiations.
- Try to anticipate the other party's issues and possible solutions. Plan out how to respond to them. Be prepared to agree to some issues and consider how to try to persuade them to change or trade out on some of the other positions. It often helps to make some concessions to the other side so they can feel like they are winning. Figure out what issues you can fight for and then give in on.
- Keep in mind the many benefits you can get by settling, especially compared to the cost, time and stress involved in going to trial.