Tips for Successful Mediation

William AlexanderDivorce, Mediation

Mediation is the single best opportunity to resolve the case—everyone is present for one singular purpose: to settle. But achieving that goal does not begin the morning of mediation, it begins in the days, weeks or months leading to that point. As Ben Franklin once stated, “by failing to prepare you are preparing to fail.” Thus, naturally, the key to any successful mediation is preparation—not just for the attorney, but also for the client and any experts involved in the case. Mediation without successful preparation can easily result in wasted time and money.

Often, mediators can spend the first few hours of the mediation simply getting to know the parties and the issues involved. If your case involves complex issues, this exercise alone could take up the majority of the day. Because of this, it is paramount that the attorney spends time reviewing the issues, the law, the pleadings, and the documents ahead of time. This will place the attorney in the best position to coherently and succinctly apprise the mediator of the facts and issues. Without this basic preparation, the will not be able to provide the mediator with the tools necessary to support the reasoning behind the offers made during mediation.

Preparing for Your Mediation

Sometimes, the mediator may be willing to prepare for a case in advance. Have your attorney check with the mediator to see if he or she will review documents and position statements prior to mediation. That way not only will your mediator be prepared to start the day brokering offers having already gathered vital background information, but he or she may be able to help ensure that all issues are addressed in every offer, rather than small unresolved matters cropping up at the end of an already long day.

Once offers are being brokered back and forth—whether from the outset or after each side has had a chance to present his or her facts to the mediator—the mediator is typically faced with questions of “why?” or “what’s their justification?” If your attorney has adequately presented the mediator with the facts supporting your positions, as well as the applicable law (when necessary), your mediator may be able to provide the opposing side with an acceptable answer. Your mediator is there to be more than just a carrier pigeon for offers; he or she wants to do everything in their power to help reach a successful resolution for the parties. Equipping your mediator with the ability to answer questions which arise in the other room when your offer is presented will assist your mediator in accomplishing their—and everyone’s—goal: settlement. Work with your attorney to help achieve that goal.

Working with Your Mediation Attorney in Atlanta, GA

Beyond ensuring that your Atlanta mediation attorney has a grasp of all the legal and factual issues in the case, be sure to also work with your attorney to prepare for the mediation process. Successful mediations can be a long and slow process. They can involve extreme or unreasonable settlement proposals. If you are not prepared to receive what they perceive to be an unfavorable settlement proposal, you may become emotional, unfocused, or seek to end the negotiation process before it even begins. If, however, you have been prepared for the likelihood that the opposing side will start with an extreme offer, you will be significantly better positioned to react appropriately and focus on forming a constructive response.

You may also wish to consider working with your attorney to assist in formulating the presentation of the facts. At some point, the mediator will want to hear from you. If you tend to be nervous when discussing your case or feel compelled to tell the mediator every detail of the relationship—regardless of relevancy—you run the risk of slowing down the process, when the main focus of the day should be on discussing proposals. You should always leave fault and blame and the door and look forward to resolution.  

Further, if you are involved in a case with a complex financial estate, ask your attorney to prepare your financial expert or consultant to be present during mediation. The mediator or the opposing counsel will likely have questions regarding valuations, at how certain numbers were arrived, and the like. If you have been relying on your financial expert to address those issues, but he or she is not present, or unprepared, you and your attorney could find yourself unable to answer such crucial questions. Make sure to meet with your experts far enough in advance of mediation to provide them with everything they will need to assist you in justifying your positions.

Considerations for Presenting Your Offer

When working with your attorney to prepare for mediation, a key topic to consider is how to present your initial offer. The first offer made during mediation is usually the most difficult—do you start with an aggressive offer or do you begin with a more reasonable position. Unsurprisingly, the answer to this question is “it depends.” What it depends on, however, is something you can determine before the mediation even begins. For example, do you have favorable facts? If the answer is yes, you know that you can be more aggressive in your proposals. If the law is on your side, then you can also start with a more aggressive offer. But there are other, less obvious factors which enter into the equation.

One factor to take into account is the personality of the other party. If the other party is motivated to settle, that likely weighs in favor of starting from a more aggressive posture. But if the other party is simply present at mediation to fulfill a requirement—due to an Order to Mediate, for example—an overly aggressive offer may cause the other party to abandon the mediation process without offering any response at all. Additionally, you and your attorney should assess opposing counsel. Some attorneys are willing to push their clients, others, unfortunately, are not. So, if the opposing counsel is not willing to persuade her client to stick with the process and respond with a counter-proposal (or, even worse, did not prepare her client at all), an over the top offer may lead the opposing party to leave the process, while the attorney willingly lets her go.

Preparing for Mediation

Preparing for mediation with your attorney is incredibly important for any successful mediation, as was discussed in more detail above. A common trap many attorneys fall into, however, is detailing a comprehensive plan with the client during the preparation and sticking to that plan regardless of how the mediation process is progressing. This can lead to formulaic and inflexible proposals which may fail to take advantage of elements of the opposing party’s offers. A good example of this may take place in alimony negotiations. One party may have a plan of the highest amount he or she would like to settle on, and the lowest amount he or she is willing to accept. If, however, the opposing party takes a different approach, e.g., a monthly amount plus premium payments for health insurance, or maintaining the mortgage, your plan to simply offer flat monthly amounts may fail to take advantage of the potential positives of the offer you were just presented. Be flexible.

Dealing with Third Parties During the Mediation Process

Having third parties, like financial experts, present at mediation can greatly assist in formulating offers and responding to counter-proposals. Others, however, may not be so helpful. Emotions run incredibly high in nearly every family law case. Because of this, many clients want a friend or family member present during mediation. If that is something you are requesting, be certain your attorney is able to meet (or at least speak with) that individual prior to mediation. Your support group may “empower” you to your own detriment. This is not the friend’s or family member’s case. They are not spending their own financial resources litigating the case, nor do they have to live with the results. So, while you may appreciate the “take him for all he’s worth” attitude the friend is bringing to the room during a difficult day, it could very easily derail a process that involves very reasonable proposals. A brief call or meeting with the third party ahead of the mediation will help you make an informed decision on whether to allow that person to be present during mediation.

Contact Richardson, Bloom and Lines, Atlanta Family Law Attorneys

If you are able to resolve your case in mediation, you and your family will benefit in many ways. It is much less expensive, you are in control of the outcome rather than a stranger in a black robe, and the animosity is less than what happens when the gloves come off in court. Call one of our experienced Atlanta family attorneys at Richardson, Bloom and Lines if you would like to learn more about how to have a successful mediation. Contact us today for more information!