In a 2009 survey of over 900 attorneys, an overwhelming 99% described mediation as an "effective tool." That view is not surprising. Mediation is a proven, effective method for resolving all kinds of disputes, including family law cases. Mediation can save time, money, and much of the aggravation that often comes with traditional litigation. Mediation also allows parties to craft outcomes that may not be options at the courthouse.
So, what should you do, as a participant in the process, to maximize the potential for a successful mediation? Here are a few suggestions-
Meet with your lawyer.
In the course of litigating, you will no doubt spend a lot of time with your lawyer. Set aside some of that time to discuss and prepare for mediation. Your lawyer will explain the mediation process and offer suggestions about how to deal with specific issues that may arise during the mediation. Together you can develop an effective strategy for negotiating with the other side.
Meet with the other side (well...maybe).
If you can do so in a civil, constructive manner, consider visiting with your spouse or ex-spouse to discuss the issues. Even if you're unable to agree, the interaction may at least give each of you a better understanding of the other side's views. Having a complete understanding can be vital to finding a compromise.
Invite those who should attend.
If there is a "support person" such as a parent, friend, or new spouse to whom you or your ex turn for guidance, consider having such persons attend the mediation. If a participant at the mediation is unable to commit to settlement without a "support person's" approval, then that person needs to be at the mediation.
Get organized.
Your mediation will include discussions about property, income, and, when children are involved, household schedules. Get your records and calendars in order so that you're prepared to discuss all of these important topics in detail.
Avoid distractions.
Make arrangements in advance for childcare and work obligations so that, during the mediation, you're not distracted from the business at hand, even if the mediation runs later than expected (a frequent occurrence, especially when progress is being made).
Keep the Big Picture in mind. Don't allow your emotions to control your decision-making. Let's be candid: You may be justified in feeling angry or hurt; but mediation is not therapy. You're mediating to achieve a specific outcome-a divorce or modification of an earlier divorce decree-which means having a serious discussion about money, property, and children. If you conduct that discussion in a businesslike fashion, you'll dramatically improve your chances for striking a deal.
Be open-minded.
A big reason mediation works is because it gives clients and their lawyers an opportunity to hear and consider both sides of the issues. You may acquire information, learn additional facts, or receive feedback from the mediator that you had not previously considered and that is instructive. If you do, incorporate that new information into your assessment of your case and honestly consider whether you should reconsider any of your positions.
One Final Consideration.
There can be a big difference between a person's "position" and a person's goals. What does that mean? A popular illustration of this concept goes like this: A brother and sister are fighting over an orange. Their mother, the great compromiser, splits the orange into two halves, one for the son and one for the daughter. The son immediately discards the peel and eats the remainder. The daughter uses the peel for orange zest to make a cake and discards the rest. The children's positions were identical: "I want the orange!" Had their mother figured out their true goals, however, both would have benefited by a much different outcome-the son could have had all of the edible portion of the orange and the daughter could have had the entire peel. Their mother thought she was doing well by simply cutting the orange in half, never realizing that an even better outcome was possible.
So focus on your and your ex's true goals, not just your positions-by doing so you'll broaden the possibilities for achieving an outcome that both of you can live with.
Patrick Keel
Email Patrick
512-476-5212
From the standpoint as an attorney or as a mediator/arbitrator, I don't like to have mediations that extend late in the evening. It's stressful on everyone, and it is a recipe for the call the next day that involves tears and regret. Scheduling a second day or half day of mediation is a much better solution.
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