“You cannot shake hands with a closed fist.” – Indira Gandhi
Mediation is an informal process by which legal disputes are negotiated (and, hopefully, resolved) through the use of a third-party neutral. Here in Gallatin County, the parties to any family law matter must attempt two mediations before the Court will set a trial date.
So what can you expect at mediation? Generally speaking, the mediator will be an attorney, preferably one with significant family law experience. I believe that it is critical to a successful mediation that the mediator have the experience to know the likely range of options available to the Court in any given situation so as to appropriately provide insight that might help resolve the case. Importantly, a mediator is not a representative of either party. The mediator’s sole purpose is to serve as an intermediary between the parties. Of course your attorney will also be present at mediation and you should always feel free to consult with him or her privately at any point during the mediation.
Mediators will often request that the parties start the mediation process together. Typically, they will ask the parties to make a brief presentation regarding the basic facts and the issues in dispute. There are different schools of thought on this subject. Personally, I never start mediations with the parties in the same room.
There are a number of reasons for this. First, family law matters tend to involve emotionally-charged issues and it is often difficult for parties to keep their emotions under control when directly confronting their ex-spouse. I want my clients to be able to relax during mediation and to be able to present their case to the mediator without feeling constrained in any way.
Second, marriages all have dynamics, some of which may have led to the failure of the marriage. The last thing I want is for that dynamic to carry itself into the mediation. For example, if the other side is a bit of a bully, I do not want my client to feel that same dynamic during the mediation process.
Finally, starting –and staying — separate during the mediation prevents either party from blustering, behaving aggressively or attempting to intimidate the other side. I believe that the parties become more realistic and get down to business a lot faster when they do not feel the need to posture in front of the other party or their attorney
If you do start out in the same room, make sure that you behave yourself. Allow the other side to present his or her case without interrupting and by all means listen to what they are saying –you might gain some insight that will help settle the case. Don’t roll your eyes or make disparaging sounds or remarks. When it is your turn to speak, breast your cards and save your arguments until you are alone with the mediator.
There are two main rules to remember during mediation. First, what happens in mediation stays in mediation; in other words, no offers or proposals made at mediation will ever show up in front of the Court. Any settlement positions expressed at mediation are inadmissible under the Rules of Evidence. The obvious purpose of this rule is to allow the parties to “think outside the box” with regard to settlement options without the fear that their proposals will somehow come back to haunt them should they be unable to resolve their case.
The second rule of mediation is that the decision to settle the case belongs to the parties. What I mean by that is that neither party can force the other party into a settlement. The mediator is not a judge and cannot make decisions for the parties. Your attorney cannot force you to settle; he or she can only give you advice regarding what the Court would likely do under your particular fact pattern. In the end, the decision to settle or not settle always belongs to the client. After all, it’s your life.
Prior to mediation you should have some idea of your settlement parameters . In other words, you should have some idea of what you’re willing to accept and, perhaps more importantly, what you will not accept. No one can predict with 100% accuracy what a Court will do. Accordingly, you will have to decide whether you are willing to “paint with a broad brush” and work towards a resolution that is generally acceptable or whether you will insist on pursuing exacting detail in your settlement discussions. I have found that most people are happier crafting settlements that get them the things that are important and have meaning to them rather than worrying about whether or not they have divided the household furnishings with exacting economic precision.
Generally, the mediation starts by the mediator explaining his or her role in the process, the basic rules of conduct and the limitations on his or her authority. If the client feels comfortable, he or she will explain to the mediator the basic facts of the case, describe the contested issues and, perhaps, propose an acceptable resolution. If the client is uncomfortable speaking, the attorney will step in and explain to the mediator the basic issues for mediation. Typically, as the process continues even the shyest of clients relax and become more vocal in the process.
Be sure that the mediator understands what he or she is allowed to communicate to the other side. Most mediators are pretty good at being able to determine what is fair game to discuss with the other party but if there is any doubt, make sure to speak up and tell the mediator that he or she is not allowed to communicate a particular fact, position or opinion to the other side.
Once the mediator has a good grasp on the facts and your position, he or she will head off to the other room to discuss the same issues with the other party. The mediator will go back and forth between the rooms until a resolution is reached or it becomes clear that no resolution is possible. Bring a book– there is often a lot of time during which you will be sitting alone or with your attorney just waiting for the mediator to come back.
Try to remember that the mediator has far more information than you do since he or she has heard from both sides. As such, you should let the mediator determine when the mediation is hopeless and should end. Even if mediation is unsuccessful, it is valuable in many ways. For example, mediation often serves to identify those areas where the parties have agreement and where they have disputes allowing the parties to focus their future efforts exclusively on contested matters. Mediation also serves to identify those areas where additional information is needed, such as an appraisal or business valuation thereby allowing the attorneys to focus discovery efforts on obtaining that missing information. Perhaps most importantly, mediation will give your attorney insight into the other parties’ legal and factual positions.