10 Steps to Increasing Your Client’s Chances of Achieving Resolution at Mediation

  1. Be prepared. Know the facts. Know the law. Know where your client wants to go, and contemplate possible routes to get him or her there. Don’t just show up: show up READY, and make sure the other side does to. Nothing hinders negotiation and resolution more effectively than not having “enough information.” Prepare a pro forma settlement agreement before you arrive so that you can get the deal on paper right then and there if the parties reach an agreement.
  2. Set aside enough time to achieve the desired result. Mediation takes time. Sometimes, real progress isn’t made until several hours have passed. Don’t schedule other appointments during the day that you’re attending mediation. Your client deserves your focus and commitment to the process.
  3. Schedule multiple mediation sessions if necessary. Mediation is a process, not an event. Have a second session scheduled for a week or two after the first session just in case you don’t wrap it all up the first time. That way, everyone recognizes the possibility that it can’t all get done in a day and insures against delay in getting back together. If you don’t need the follow up, then you can always cancel it.
  4. Educate the mediator in advance. Counsel should provide the mediator with a summary of the issues involved, salient facts and parties’ positions. This will save time (and expense) at the mediation session itself. Consider having the mediator meet or speak with the parties in advance as well. An “ice breaker” can help ease the clients’ anxieties about the process. Make sure everyone agrees on what will be done in advance, and stipulate to having it all considered part of the confidential mediation process.
  5. Mentally prepare your client for resolution. Sometimes, the parties are not emotionally or psychologically prepared for the prospect of resolving their case. They freeze just as they are about to “seal the deal.” Make sure that your client understands that mediation is a highly effective means of resolving disputes and that a final resolution of the case could be at hand. Are both parties ready for their disputes to come to an end? Are they ready to compromise and achieve a resolution that may not include everything on their “wish lists”?
  6. Mentally prepare yourself for resolution. You can’t be effective for your client if you’re not mentally ready for settlement either. Understand your role in the process. Remember that your client and his or her spouse made decisions for themselves and their family long before they came your way. They may be in foreign territory as far as divorce litigation and mediation goes, so your job is to help your client navigate the process by serving as counselor and advocate, not by making the decisions for them. Be prepared to watch your client settle for less than what you believe he or she deserves. So long as you’ve done your job, don’t be regretful of seeing the parties put their disputes behind them even when you don’t like the deal.
  7. Manage expectations. Don’t just develop your client’s ‘Wish List’: determine what he or she would be happy with and what he or she could live with. That gives you and your client greater flexibility in making and considering settlement proposals.
  8. Select the right mediator. The mediator should be a good fit for the parties and professionals involved. If you’re dealing with sophisticated financial issues, hire a mediator who is strong on finances. If settlement efforts have been thwarted by the parties’ emotions, a mediator with more of a therapeutic approach may be more effective. I find that retired senior judges can be very effective in mediations with older couples, who tend to appreciate having someone they perceive as a peer working with them.
  9. Read and learn about the art of negotiation. You negotiate all day long, yet how effective are you as a negotiator? Are you maximizing your clients’ ability to achieve a negotiated settlement? Or are you insuring that everything will be left up to a judge? There is a whole field of study on effective negotiation. Read William Ury’s Getting Past No and Getting to Yes and view negotiation in a whole new light.
  10. Become a Peaceful Warrior. Ten years ago, I realized that I enjoyed mediating cases better than trying them. I knew how to try a case, and enjoyed the intellectual challenge of courtroom advocacy, but I recognized that the real talent in family law is in creating solutions outside the courtroom. That’s what families deserve, and it also improves the quality of life of the professionals who serve them. If you are a fan of mediation, there is no doubt that you will be more effective in mediating cases. If you’re not, it will show. And remember, just because your peaceful doesn’t mean you’re weak.
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