Mediation can be a very effective means for resolving disputes in a marriage dissolution but its effectiveness often depends on how well-prepared the clients are for the questions and outcomes they may encounter in the process.
Mediation is often seen as a primary fixture, or stepping stone, in the family litigation process. Regardless of the recent popularity of processes such as early neutral evaluations, mediation continues to be utilized more often and, many would say, may even be more effective at long-term case resolution than its peers. One of the key means of increasing and consistently maintaining the effectiveness of mediation is preparing clients well.
Benefits of a Prepared Client
Mediation in family disputes has the potential to be a highly successful vehicle for case resolution and increased client satisfaction—or, it can be a complete waste of time: You pick. The key issue in deciding the value of mediation is the level of client preparation and awareness.
So, what makes a good mediation? Obviously, a settled case doesn’t hurt—but what really makes mediation worth the time and money?
First, a good mediation (with or without the attorney present) will provide the client with a clear understanding of their own position and on what issues they will be willing to compromise. This may seem obvious, but mediators often report that many clients cannot properly articulate the answer to a very simple question: What do you want out of this whole thing? Having a venue for the client (or the attorney) to clearly and succinctly articulate this position is crucial in effective mediated negotiations.
Second, a good mediation will assist the client in learning the positions of the other party in the dispute, providing a starting point for dialogue and negotiation. Having a clear picture of the other side’s position is vital. How often, as an attorney or attorney-mediator, have you read a summons and complaint that was seeking sole physical custody, only to find out later that the party really wants only a few extra days of parenting time a month? It’s the old “ask for everything and hope for half” routine. Having a confidential opportunity to discuss the real issues is vital toward resolving the case short of trial.
Informed and properly prepared clients are far more likely to reach a reasonable and acceptable agreement. Let’s face it: No one wants to send their client to mediation and later find out that they agreed to something that sets them up for failure in the future. Attorneys want their clients to find a resolution that actually works for them—not an agreement that will bring the family back to litigation in six months. Clients who are aware of their rights, who understand the impact of their positions, and who have a clear vision of what’s at stake if the case goes to trial are in a much better place to negotiate.
Finally, clients who are prepared are less likely to be pressured into agreement by either the other party or the mediator. Rare is the mediator who intentionally tries to coerce a litigant; however, in my experience, many times a mediator has been oblivious to the coercive effect of their body language, the other party’s presence, or even the situation itself. The last thing any family law attorney wants is their client being bullied into an agreement. Appropriately coaching clients is the best way to prevent that.
Effectively preparing a client for any type of mediation is really a four-part process: identifying the nonnegotiable issues, identifying the negotiable issues, establishing awareness of the effects of not reaching a settlement, and clarifying roles. Let’s take each part in turn.
What’s Not Negotiable? First, the client must be led to identify what issues are not subject to negotiation. Sometimes a client just cannot compromise on a certain issue. They understand the entire picture but for some reason, they will never compromise on this particular issue. For example, some noncustodial clients just refuse to negotiate for anything less than 50 percent parenting time and some clients refuse to negotiate on the issue of school choice or even the role of stepparents (current and/or future). A client that has a very clear picture of what they will not give up is in a better position to use this information effectively in a mediation.
One note of caution, however: Attorneys should “reality check” their clients. Part of great legal representation is creating reasonable expectations for the client. A client who is set up for failure will not be a returning customer, so it’s vital that attorneys really explore the reality of the client’s nonnegotiable issues. Too often, clients come to mediation with unrealistic expectations of the outcome of their case and demand nothing less than everything. This results in a wasted mediation session and, in most cases, a client who will be sorely unhappy when they read the final order. Effective and consistent reality-checking needs to be an attorney’s best friend when prepping their clients for mediation.
What Is Negotiable? The second part of effective client preparation is identifying the negotiable issues—areas where the party is willing to compromise. This is fairly self-explanatory; however, it can be useful to clients who are less than articulate. Clarifying these issues ahead of time allows the party time to consider options before mediation, allowing the session itself to be more productive.
What to Avoid. The next area of client preparation is making the client aware of the effects of not reaching a settlement. Again, being able to “reality check” the client is the key skill here. How many clients start the litigation process and, 60 percent of the way in, realize that it is costing much more than they anticipated? Or that it is taking longer than they thought? Or that their case is likely to end poorly?
Most family law attorneys have been in the business long enough to know, at least somewhat, what the likely outcome of a case will be—not exactly, but at least probably. While many attorneys are hesitant to give a “here’s the deal” talk to their client, it behooves the attorney to set realistic expectations of a potential trial result. Obviously, this needs to be accompanied by a disclaimer to the client that no one can be 100 percent sure of the outcome.
Having an acute awareness of the situation can help the client make better decisions in mediation. Even when the attorney is present, the client who fully grasps the consequences of their decision in mediation will likely be reassured.
Who Does What? Finally, clarifying roles is a key, but often overlooked, aspect in client preparation for mediation. In litigation, too often clients are passive observers to the action. They sit and listen in court as their attorney argues their case, they sit and watch as the attorneys lay out their positions in an early neutral evaluation, and they cautiously tiptoe around the Guardian Ad Litem while trying to appear at ease. Mediation is where clients should feel absolutely free to express their opinions and positions.
While it’s no lie that mediators are there to settle cases and not to provide therapy or parenting skills, mediation is an opportunity to discuss how the clients’ lives are impacting the decisions they are making in the divorce process. After all, we all know that the divorce process is simply a legal forum to resolve what is essentially an interpersonal problem.
Clients should also be made aware of the style of the mediator. Some mediators are known to be very welcoming and focused on the interpersonal issues while others, myself included, are more focused on the resolution of the legal dispute and employ a more directive approach. Regardless, an attorney would do well to give their clients a “heads up” about what the process will look like, even if the attorney will also be present at mediation.
The Take-Away Message
The take-away message for my attorney colleagues is this: Prepare your client for mediation thoroughly. Make sure that your clients are as prepared for a mediation session as they would be for a hearing or other important event in the divorce process. Mediation can help clients do what early neutral evaluations and other ADR processes many times cannot: address the underlying legal and interpersonal problems. However, this can only be accomplished if the client is well-prepared.
Justin L Terch is a practicing mediator and consultant in the Duluth area. He teaches in the Legal Studies Department at the University of Wisconsin–Superior and has a thriving ADR practice focusing on family and workplace disputes. He can be found online at www.terchandassociates.com