As a practicing divorce attorney for over eighteen years I have formed fairly strong opinions on what mediator characteristics and tactics are most helpful in getting cases settled. I should admit upfront that I have never acted as a mediator nor been trained as a mediator. If one were to discount my opinion based on the fact that I have no experience as a mediator, I could not argue with that. However, what I do have is the perspective of a lawyer who has participated in well over two hundred divorce mediations.
Below are a few suggestions I would offer mediators who handle divorce mediations.
Allow the Parties to Vent Briefly But Do Not Encourage It
Some mediators will essentially give free reign to the parties to vent as long as they wish and even ask open-ended questions as a way to get them to open up. They will argue that the parties need to do so in order to get past any emotional baggage and focus on the issues.
I disagree with this for two reasons. First, while the parties may need to feel free to express themselves and vent for a bit, if they are encouraged some people are more than happy to go on rehashing the past failings of the other spouse for the entire day. Obviously, mediations are for a finite period of time and that time needs to be used productively. Second, the mediation process needs to be focused on solutions, not fault-finding. Once a party begins focusing on how terribly they have been wronged it is often extremely difficult to get them to concentrate on practical issues and solutions.
If One Side Claims They Are Missing Financial Information Address it Early
In my experience it is common for the opposing attorney to say they are “not comfortable” resolving financial issues or property division yet because they claim they lack certain information or documents. While this is most often the sign of an unprepared attorney, the issue nevertheless needs to be addressed in order to resolve the case. The key is to get the complaining attorney to specify exactly what information they need in order to resolve the case today. In this modern era of online account information a great many of these issues can be resolved by the party with access going online right then and providing the information/document immediately so the focus can be shifted back towards the resolving the case.
Don’t View the Lawyer as an Obstacle
At times I have been in mediations where it was apparent to me that the mediator viewed my participation as a lawyer as a hindrance to the process and would have preferred that I not be present. While that is probably a common thought among mediators, it is misplaced. An effective lawyer, particularly one who has a good rapport with the client, can be extremely helpful in gently nudging the client to consider the benefits to a settlement offer, as well as the risks inherent with trial. A good divorce attorney will be just as interested in reaching a reasonable settlement as the mediator will, maybe more so since the lawyer has lived with the case a lot longer. Use the attorney’s influence with the client to help move the case towards settlement.
Avoid Joint Sessions
While I am sure that there are occasional exceptions, my experience is that joint sessions in divorce cases are extremely counter-productive. The most unique aspect of divorce litigation as compared to other areas of law is how emotional the parties can be. This heightened level of emotion can make it extremely difficult for a party to focus on concrete issues, like spitting up a 401k, when what they are really obsessing about is their spouse’s infidelity.
In a perfect world, during a joint session the two spouses would look at each other across the conference table, listen and fully understand the other’s point of view, accept that they also had some role in the marriage not working, and then empathetically focus on reaching a win-win resolution. The reality looks nothing like this. Typically after a joint session one or both parties will be angry and unfocused, making it much more difficult to focus on finding a mutually acceptable resolution.
People or their attorneys will sometimes say something with which the mediator disagrees. It is perfectly acceptable to mention that you disagree with a statement or position. What is not acceptable is trying to make the party accept your point of view. Arguing with the parties or their attorneys is not unproductive, and does not foster the purpose of the mediation, which is to assist the parties in reaching decisions of their own choosing. A tactful mediator is not necessarily good at winning arguments but is very good at settling cases.
Do Discuss Potential Courtroom Outcomes
At times when I have stated my opinion on a likely court ruling on a particular issue, the mediator has responded with “well, we are here to see if we can reach an agreement, not talk about what will happen if the case were tried.” I don’t believe that this is a realistic approach to take. The parties and their lawyer are going to factor potential trial outcomes into their evaluation of whether a settlement offer is reasonable. While the objective of mediation is a mutually agreed settlement, it would be malpractice for a lawyer to attempt to advise his or her client on whether to accept an offer without at least considering the potential trial outcomes in that analysis.
While I would certainly agree that there is no such thing as a certain or guaranteed trial outcome and that on any given day lots of surprising results can happen at the courthouse, to pretend that potential trial outcomes are irrelevant is impractical. The mediator who takes this position runs the risk of losing credibility, if not with the party at least with the party’s attorney.