By Megan Weddle, Stowers & Weddle PC
I love mediation. I love doing it as a family law mediator and I love doing it as a family law attorney. I love having clients who are absolutely certain at the beginning of the day that it will be a waste of time because the other side will not settle (always the other side) and then leaving later with a smile and an agreement in their hand. It works, people! It really does work.
But there are times where I, as the cheerleader of mediation, get a bit frustrated – and that is my confession. Oftentimes mediation is ordered by the court, and the parties and counsel do not have a choice of whether or not to sit in my office. At those times, I am the “get out of jail free” card they need to pass “go” and proceed to court. While I understand that some fact patterns do not lend themselves to resolution without major concessions from one party (like when a mom has moved to California and wants to retain custody, and dad objects to their relocation across the country), it more often seems that cases very well can be resolved at mediation and the opportunity to do so is overlooked.
How can mediation be more successful? Preparation – preparation of the mediator, the attorneys, the case and the clients. In the article “Lawyer Preparation for Mediation Puts Money in Clients’ Pockets”, the author sets out these areas as key to maximizing settlement. This is true across all cases mediated, whether civil litigation or family-related issues. Most counsel would not go to trial without completing discovery, identifying the evidence and preparing the witnesses. The same should be true for mediation. Mediation is often the client’s day in court and effort should be made to make it the best day possible.
As a mediator, I am capable of delivering discovery documents from one party to the other. However, if that had been completed prior to mediation, wouldn’t that give the other party a chance to review the documents? Wouldn’t that give the party a chance to respond? Wouldn’t that have saved the cost of mediator time that could be spent determining what the document means to the case? Undoubtedly, there are cases where information needs to be shared during the mediation. In addition, there is often a financial burden for parties to conduct extensive discovery. This must always be weighed against the benefit of waiting to exchange at mediation.
It’s important to also consider the impact that failed exchanges of discovery during mediation have on the parties and counsel. Attorneys become angry because the other side did not come with their documents, and parties become frustrated as they watch the process and feel it is wasting their time. With a prepared case, the information is already there. With a prepared case, time can be spent focusing on the issues, the differences the parties have and the stories from each side. Time can be spent moving toward a resolution.
In my opening statement to clients in mediation, I tell them that an agreement will be reached because they have compromised on something and so has the other side. Clients who have not been prepared for mediation look wide-eyed and think “I am never giving up my position.” However, those who have been educated about mediation, or at the very least are receptive to the idea, are ready to stand firm on the issues that are most important to them while letting go of others. An attorney who is supportive of the mediation process and encourages the client to consider possibilities is doing a great service to the client. Many attorneys just love to go to court, and we all know that sometimes court is simply necessary. However, helping a client to objectively see the benefits and risks of court is key to moving toward resolution.
As attorneys, we need to prepare for mediation as though it is our client’s day in court. As mediators, we need to help educate all those involved in the process. Mediation is here to stay and is an important tool in resolving cases in a very busy court system. We should all take steps to make it the most effective tool in our box.