What to Expect in Mediation

This post is a very broad look at mediation as it is practiced in Texas, specifically in Tarrant County, Texas.  Please don't assume that my comments accurately describe mediation as it is practiced in other states.

1.  Who is the mediator?  The attorneys in the case will normally choose the mediator, although the judge in the case might make the decision.  They consider mediators they have had success with, ones with personalities compatible with the parties or ones with special knowledge or experience with the issues that will come up.  Most often, the mediators are local attorneys.  Sometimes they are retired judges.  In some cases, two mediators are used.   Mediators are specially trained in mediation and family law.  They normally have strong communication skills and are very good listeners.

2.  What is the format?  In Texas, most cases  use the caucus system which means that each side is in a separate room and the two sides don't usually come into contact with each other during the mediation.  Each side has their own attorney who actively participates in the process.  In other states, the mediation takes place in joint sessions and attorneys don't participate in some areas.  Mediators can work under either system.  In the beginning, the mediator introduces himself or herself to the parties and gets some general information.  The mediator asks one or both sides for opening offers which are then conveyed to the other side.  The mediator goes back and forth, meeting with the parties, asking questions and keeping the discussion moving.  Part of the mediator's job is to get the parties to consider other points of view.  That's helpful in breaking through impasses.  After many trips back and forth, the mediator can usually help the parties reach agreements.

3.  How do you know what to ask for?  It's a good idea to spend time prior to the start of mediation in figuring out what you want to end up with.  Once you are clear on what you want, then you can come up with some opening and secondary positions to use to start the process and keep it moving.  Equally important is to think about the motivations and interests of the other side.  If you can figure out what they are likely to be aiming for, you can plan your moves to maybe achieve both your and their objectives.  Maybe you can come up with some trade-offs.  Planning ahead will make it easier to come up with ideas that can work.

4.  What should be your strategy?  Keep your goals in mind.  Leave yourself room to compromise.  You should never start off requesting your best result.  No matter how logical or reasonable you think it is, the other side is not going to accept your opening offer.  Some people take an almost opposite approach, which is also usually a bad idea:  start off with the toughest issues to test the other side and find out if they are willing to compromise.  It's usually better to start with some easier issues and create momentum in coming to small agreements.  That can lead to bigger agreements.  Special warning:  Don't expect logic or rationality to plan much of a role in settling a family law case.

5.  Is the result binding?  Yes, if it's properly prepared and signed.  It must contain special wording saying that the agreement is binding and irrevocable.  With that, courts ill enforce mediated settlement agreements.  Be sure you really approve of all the terms before you sign, because there's no backing out or changing your mind.

Be sure to talk with your attorney and prepare ahead of time.  The attorney can answer any questions you have about how mediation works.  You should go in expecting to be successful!

How to Prepare for Mediation

Once the decision has been made to go to mediation, each side and their attorney should prepare.  Some attorneys spend a good amount of time getting ready and others spend little or no time.  The better practice is for the client and the attorney to put in time preparing since there is so much at stake.  The opportunity to work out a favorable settlement should not be squandered.

So, what can you do to prepare?  Here are some tips for the attorney and party to meet and work on.

• Identify the important issues.  Hopefully, the attorney already knows what the goals, needs and interests of the client are.  Sometimes, however, a goal may change in the course of the case.  For example, at the beginning, a party may want revenge or to punish the other party (not necessarily a course of action I would endorse, by the way).  After time passes, sometimes the anger cools and the party decides he or she just wants to get the case over with.  It is actually very common for goals and needs to change. A client should tell the attorney about any changes of attitude or plans.

• Figure out the other side's goals, needs and motivations.  You can put together a series of positions you might be able to take to compromise and come to an agreement.  You probably need to build in room to make some concessions so the other side will feel like he or she has won something.

• Gather needed paperwork.  Find out what paperwork you may need and then have it ready for the mediation.  It usually helps to have updated print-outs of all financial accounts so you can work with current and accurate numbers.  Your attorney can tell you what you need.

• Adjust your attitude.  Don't dwell on emotional issues, especially anger.  Think of the negotiations as a business deal.  Don't let personalities into the mix.  You can make a better deal if you can stay calm and rational during the mediation session.  Think of the advantages of getting the dispute resolved and being able to move on with your life.

• Ask questions.  Your attorney has probably done lots of mediations and may not explain every detail or may assume that you know or understand something that is confusing or foreign to you.  Take the time to ask questions.  Your attorney wants to help you, so help yourself by seeking clarity for you and your attorney.

Communication with your attorney before and during the mediation session will be key to you being comfortable, prepared and successful.  Good luck!