As a practicing family law attorney for 18 years I have participated in many temporary orders mediations in divorce cases. In many counties mediation prior to a temporary orders hearing is mandatory under certain circumstances. Many courts require mediation on temporary orders when custody is contested and in some courts it is mandatory regardless of the issues. Even when not required by the court, mediation of temporary orders is often a very helpful process to attempt prior to a hearing that is likely to be ugly and create or worsen animosity between the parties.
Below are my tips as a practicing divorce lawyer on how to best prepare for a temporary orders mediation.
Key #1: Fully Prepare the Case for Mediation
Far too often lawyers treat mediations on temporary orders with a rather casual attitude. This is actually one of the most important phases of the case and it will set the tone of the litigation going forward. While you normally do not have as much time to prepare as you would with a final mediation it needs to be given significant attention. You should be just as prepared for the temporary orders mediation as you would for a hearing on the same issues.
You should compile and organize all the relevant financial information you will need to evaluate and/or prove your case. In my jurisdiction a “Financial Information Statement” is a required document for hearings. It outlines the parties’ respective monthly incomes and expenses and shows what liquid assets each party has access to. For financial issues these two documents (each side prepares an FIS) would be the most significant pieces of evidence at the hearing yet, since they are not technically required, many lawyers do not prepare them for mediation. This is a mistake. Once Financial Information Statements are exchanged it usually becomes very clear where the parties’ positions on the financial terms differ. Once these issues are defined the negotiation can move forward much more rapidly.
Another extremely helpful document is a list of proposed temporary orders. Generally, this is not the actual order draft (in my state this might be 30-40 pages long), but rather a one or two page summary of the terms, similar to a list of terms in a Mediated Settlement Agreement. While this document is not required in Texas for temporary orders hearings (except in a few select courts) a written list of proposed orders again helps outline exactly what you are seeking. From there the case can move forward on those issues, and avoid wasting valuable mediation time on a litany of non-issues.
Key #2: Fully Prepare the Client for Mediation
While it is very important to prepare a list of proposed temporary orders for the mediation, it is equally important to involve your client in the preparation of the terms. You want to make sure that they understand the proposal, are in agreement with the terms as proposed, and further understand that this is an initial offer and that compromises will likely need to be made in order to reach a settlement. There is nothing worse than effectively negotiating a case and almost reaching a very favorable settlement only to discover that the client is actually not in favor of the terms.
This is a mistake I personally made early in my career during a mediation. Since the client seemed to go along with what I was proposing I mistakenly assumed that he agreed with the proposed terms. It wasn’t until late in the mediation that he began to voice objections to some of the terms. Since these terms were proposed by us and already agreed to by the other side this made the mediation very difficult going forward. Ultimately, the terms were tweaked slightly and the case was settled, but the situation taught me a great lesson. In order for the client to feel good about a settlement they need to feel a certain sense of ownership.
Lastly, make sure that you fully explain to the client that the mediation addresses only temporary orders and that the case will continue to move forward even if the mediation is successful. While the process may seem obvious to us it is extremely confusing to clients, even sophisticated ones. So assume that your client doesn’t understand the process and fully explain the steps going forward.
Key #3: Negotiate the Terms Intelligently
There are three primary issues involved in negotiating effective temporary orders. Requesting what your client needs without going overboard, addressing the timeline of the case, and considering the possibility of a final settlement.
Get What Your Client Needs without Being Excessive
First, make sure you ask for everything your client needs but don’t get greedy. Fully understanding the details of the case (in particular what your client will need financially to make sure they can pay the bills while the case is pending) will go a long way towards making sure that you ask for the essentials. On the opposite end of the spectrum you want to encourage your client to not ask for everything under the sun. For example, even if you were able to reach an agreement requiring the other side to pay more than they were capable of, this would just create an issue that would need to be addressed and modified later.
Address the Case Timeline in the Temporary Orders
In some courts the case timeline will essentially be dictated by the schedule that the court automatically puts cases on. For example, the case may already have been assigned a trial date and in many jurisdictions this will automatically determine the deadlines for completion of written discovery, taking of depositions, exchanging of inventories, and mediation of final terms. If the court or jurisdiction you are in does not automatically address these deadlines then you will want to include them in your terms. Cases that are not on a schedule tend to flounder and drag on unnecessarily. If the temporary orders address these deadlines your case will necessarily move much more rapidly towards a conclusion.
Consider the Possibility of a Final Settlement at the Temporary Orders Mediation
While this certainly is not appropriate for all cases, it is definitely worth considering the possibility of attempting to settle the entire case at the temporary orders hearing. Often the financial, custody and other case issues are relatively clear cut and an experienced divorce lawyer can fairly accurately predict a range of likely final results. So for the right kind of case and the right kind of client (i.e., one that is emotionally ready to move on) you can do them a tremendous service by attempting to settle the entire case, thus shortcutting the process by many months and saving the client potentially tens of thousands of dollars in legal fees along with untold amounts of emotional stress. Obviously, this strategy is not appropriate where you don’t have sufficient information about any of the key terms of the case, like missing financial records or where there is a legitimate dispute over custody.
Key #4: Don’t Be Afraid to Have the Hearing
For a variety of reasons, a reasonable settlement is always preferable to taking your chances with whatever may happen at the courthouse. But as a lawyer it is crucial that you not become so invested in the mediation process that you lose sight of your role: to ensure that your client’s interests are protected and to create temporary orders that are fair and reasonable. While reasonable settlements are good for the client, not every potential settlement is reasonable and you should always be willing to go to court if necessary to get a reasonable result for your client.
The worst thing in negotiations that a lawyer (or their client) can do is to decide that the case must be settled no matter what. No matter how bad the facts, no matter how poor a result you would expect in court you should never simply accept terrible terms just because you are scared or embarrassed to do the temporary orders hearing. As soon as the other lawyer recognizes that you are planning on settling regardless of how bad the terms are you can expect them to dig their heels in and become very difficult to negotiate with.
The temporary orders hearing and the temporary orders mediation are extremely important steps in a divorce case and set the tone for the entire litigation. Oftentimes, much of what gets ordered and/or agreed to on temporary orders will end up in the final order as well. Many issues (e.g., custody issues) effectively get resolved after the issue is explored at the temporary orders stage and a party realizes what an uphill battle they have.
As important as this phase of the case is it is far too often not given the attention that it deserves. Focusing on the four areas above will help you to resolve your temporary orders issues in a way that moves the case along and is in your client’s best interest.