Most jurisdictions in middle Tennessee now require that the parties attend mediation prior to setting a trial date for either an initial divorce proceeding or a post-divorce proceeding. Mediation can sometimes be your last and best opportunity to settle the dispute between the parties prior to trial. The benefits of mediation are well-known. If the case settles, the parties have saved thousands of dollars in litigation expenses. Furthermore, mediation can alleviate the parties’ stress commonly associated with a trial. You will have a better chance to advocate your client’s position in mediation as you will not be constrained by the rules of evidence or civil procedure during the process. Finally, successful mediations help keep our already overcrowded dockets from reaching insurmountable levels.
During my career, I have participated in hundreds of mediations, both as an attorney and a mediator. In this article, I will be discussing some basic ideas on how to assist your mediator in settling your case.
Always Provide the Mediator With a Written Mediation Statement Prior to Mediation
In my mediation confirmation letters, I request that the attorneys provide me with a written mediation statement outlining the issues to be mediated, the strengths and weaknesses of their cases, and a basic outline of what outcome they desire. The mediation statement is important for several reasons. This is your first opportunity to advocate for your client in the mediation process. The mediation statement provides the attorney with an opportunity to present their client in a positive light prior to the mediation. This is especially important if the opposing party fails to provide the mediator with a mediation statement and vice versa.
The mediation statement provides the mediator with an outline of the issues that will be mediated for the clients. If the mediator knows they will be mediating a parental relocation case as opposed to a child support modification, it will help them prepare more effectively. If both parties provide a thorough mediation statement, it can streamline the mediation process as the mediator will know in advance what issues the parties are already close to settling and what issues the parties will need to discuss in-depth.
Come to Mediation Prepared
It can be more difficult for a mediator to help settle your case if the attorneys and parties do not already have the information and documentation necessary to mediate the issues. For instance, if the mediation involves child support modification, it will greatly streamline the mediation process if the parties have already exchanged the financial information necessary to determine each party’s income. If one of the issues is transmutation of separate property into marital property, be prepared to provide the mediator with the applicable case law supporting your position. When you come prepared to mediation, you are also showing your client that you care about their case. When you come to mediation prepared, it allows the mediator to spend more time finding solutions to the issues rather than first having to determine what the issues are.
Stay Focused and Calm
The mediation process is usually less stressful for an attorney than a trial. However, this is not always the case for the litigants. Your client will likely be nervous during mediation. After all, we are trying to help them navigate through one of the most difficult and important decisions of their lives. If you remain focused and calm during the mediation, it will help your client to remain focused and calm. This is also true for the mediator.
Sometimes your client will need to express their feelings to the mediator, i.e., sadness, frustration, etc. It may be very important to the client to be able to express these emotions to the mediator although not entirely helpful at settling the issues at hand. If the mediator and the attorneys remain calm and focused throughout the process, it will help the client do the same while still being able to tell their side of the story.
Sometimes the mediator and the attorney have a difference of opinion on a factual or legal issue. In my experience, it may be wise to discuss these issues out of the presence of the client. The client may lose faith in the mediation process if they see their attorney and the mediator having a disagreement on how to proceed. However, sometimes it is important for the litigants to see their attorney advocate for them during the mediation process. Just make sure you know your client and how your actions may affect them. Joshua L. Rogers