Family Law Case Management: Mediation Checklist

The Mediation Option

Mediation offers a better alternative. The mediator is there to listen, to understand, to sympathize when a party needs to “tell the story,” as so often occurs in the aftermath of a bitter separation.  When someone is needed to carry a proposal to the other side with candor, reassurance and support, the mediator can do it best. As an uninvolved, neutral intermediary, he or she carries none of the baggage that often accompanies a settlement offer from opposing counsel.  The mediator is also the best choice when an outsider is needed to pick up a strained or aggressive proposal and give it a bath in the cold water of reality.  For all these reasons and more, mediation is the domestic lawyer’s best dispute settlement tool.  The author’s firm often steers a client’s case towards mediation and away from the ‘back and forth’ of exchanging letters or written settlement offers because mediation is frequently more cost effective for the client, in addition to the other reasons stated above.

Domestic mediation bears little resemblance to mediation in a traditional civil case, such as personal injury, commercial contracts, or worker’s compensation. Equitable distribution cases are often multi-level, complex disputes involving numerous issues.  These “moving targets” can involve classification of the marital/community and separate property, putting a value of the assets in each category both at separation and at trial, and distributing them equally or unequally.

Child support and custody/visitation problems must be solved promptly and fairly with an eye to the future, since these parties will – through their children – continue to maintain some sort of relationship after the settlement is done, unlike most parties to a general civil dispute.  Future enforcement problems and tax considerations put a premium on creative drafting of the alimony or spousal support provisions in the settlement instrument. A well-written settlement can last for decades and continue to return value to the parties who signed it.

For these reasons, it is important to approach family mediation much as one does in choosing a home to purchase.  While there is certainly some value to driving around and checking out various options or neighborhoods, a better option would be to have a plan, an outline, and an organized approach for the transaction which is coordinated with a professional in the field.  In the case of a domestic dispute, it means using a checklist.

Why a checklist? While initially a checklist may seem like a low-level approach at best, a deeper look reveals the benefits.  One commentator points out that checklists are needed as humans are by nature fallible and inconstant inconstant. While discipline may overcome this to an extent, discipline is hard and not something you can always count on day in and day out, particularly with a full caseload, court appearances, client needs, and the business of a running a law practice also demanding a practitioner’s time and attention.  Good checklists are efficient, easy to use, precise, and help people in some of the most difficult situations.

Checklist For Domestic Mediation

Before Mediation

1. Is the case right for mediation? While many cases have a good chance of settlement in mediation, some will never be closed in this way.  Take the measure of the case and determine whether it makes a good candidate for mediation or not.  Does the other side want to reach an agreement?  Is there any reason for your client to agree on a settlement?  What are the incentives promoting agreement?  What will each side lose if the case is finished with mediation instead of a trial?  For example, Mr. White may see no reason why he should negotiate a settlement which will only divest him of assets because he has control over all of the family and business assets.  Ms. Smith may want “her day in court” for purposes of vindication, embarrassment of her “soon-to-be-ex-husband” or other reasons.    If Mrs. Brown is living in the marital home paid for by her husband and receiving a hefty amount of temporary alimony, why would she have any incentive to negotiate a different, and potentially lower, settlement for final alimony, particularly if the deal could mean a relocation or sale of the home?  Many of these problems can be overcome by a skilled or experienced mediator, but wise practitioners will make these assessments at the outset of the mediation checklist.
   
   

   "A wife may not have any incentive to negotiate when she retains exclusive occupancy of the marital residence, receives substantial support and does not work."  —Gary Skoloff, The Art and Craft of Successful Divorce Negotiation.

   
   One side may have nothing to gain and much to lose by engaging in mediation.  When this situation is present, you’ll save time and money by discarding the idea of mediation in favor of setting a prompt date for trial.  While trials are costly, mediation will probably add unnecessary expenses to the front end in a case where the other side has no incentive to settle and would likely prolong the settlement negotiations indefinitely.
2. "Who ya gonna call?” Choosing the right mediator.  Selecting the proper mediator is a vital initial decision.  Do you want a tiger?  Or perhaps a tiger lily?  Is the case right for someone who can act as the impartial umpire, standing apart and carrying offers and messages back and forth?  Do you want an involved intermediary who, after listening to both sides, begins to offer independent suggestions on how to settle the case?  Will your client listen to and respect a mediator who weighs in with some opinions of her own as to the merits of the client’s position?
   
   “Hands off” and “hands on” are two of several possible styles that mediators adopt.  Background and experience are other factors in deciding on a mediator.  Do you need a certified mediator, or will any local attorney do?  Do you want a former judge who might have enhanced credibility by her ability to point to cases she has adjudicated when on the bench?  Do you want, if available, a family law certified specialist?  A Fellow of the American Academy of Matrimonial Lawyers?
   
   Do you even need an attorney?  Think outside the box.  Perhaps a psychologist would do if the issues are visitation and custody, or a CPA would be useful if the matter involved finances (support or property division).  Spend some time analyzing the case and your client to see what kind of mediator and mediation style is right.
   
   What if a lawyer selected a mediator that the other side will respond to and, hopefully, accept?  Some of you may be thinking that a lawyer’s job is to protect their own client’s interest. How does focusing on the other party accomplish this? Consider whether the other party has a difficult personality, has hangups about what ‘marital fault’ occurred, is still processing the separation and needs a friendly ear, or perhaps needs a voice of authority other than his/her lawyer. This strategy is particularly effective in a case where you trust that your client will listen to you and, more importantly, actually take your advice.
3. “Is the time right?”  Select the optimum time for settlement discussions.  First and foremost, do you have what you need to mediate? Is discovery complete? Have all documents been exchanged? What is missing? Did you take the time to trace out the client’s inherited stock to prove it is separate property?  After all, the other side will demand some level of proof before agreeing to classify that as separate property, even at a mediation.
   
   Your client might be in a bitter and oppositional frame of mind if her husband just walked out of the marriage to spend the rest of his new, middle-aged life with his paramour.  If your client has just been brought to his knees by an arduous award of post-separation support or a preemptive strike involving interim allocation of half or more of his cash, perhaps the passage of a few weeks or months might help smooth the road for mediation.
   
   The case may be ripe for mediation if the time and legal expenses have taken their toll, some time has passed since the separation, feelings of anxiety and uncertainty about the future are present, or the prospects for a “better deal” do not appear bright on the horizon.  The timing of a court date can work both ways in prompting mediation.  In some cases, scheduling a mediation close to the threshold of the trial works best because the fear of a decision over which they will have no control will drive the parties to a bargain.  At other times, the possibility of a significant savings of legal fees and ability to forego all that comes with protracted litigation may motivate the parties to settle when the trial is in the distant future.
   
   Analyze the time dynamics of the case.  In most family law cases, time is not a neutral factor ticking away quietly in the background.  It is a dynamic, active factor which can drive the entire case to settlement or trial.  If our hypothetical client John Doe, DDS needs to get the case over with quickly so he can marry his dental assistant/paramour, then time is against him and that may prompt a settlement meeting.  If Jane Doe, John’s “soon-to-be ex-wife,” needs to have a custody order so she can move back to Texas with the children, then there may be no time for mediation, or the time factor might be useful to get a quick mediation scheduled.  Discuss the issue of mediation candidly with your client to jointly decide if it is worth pursuing at this time.  Revisit the issue or continue to address it until the client is ready, or else makes a final and informed decision against it.
4. Before mediation: Prepare, Prepare, PREPARE!  In a limited sense, attorneys can use mediation for discovery.  That is to say a practitioner may probe and explore your opponent’s position and, in some cases, obtain documents and information.  Of course, this is important if the case ends up going to trial as the time in a failed mediation fruitfully provided documents and/or information, or caused the other side show its hand.
   
   In a broader sense, mediation should not be used for discovery.  Discovery must be accomplished before the mediation starts.  No truly effective mediation session can be conducted while the attorneys are trading documents and data.  The time for this intensive review of a client’s case and the other side’s is before the mediation begins. Perform an inventory of two items at least a month or two prior to mediation: what the client needs to produce to be ready for mediation, and what is needed from the opposing party.  Next, assign tasks and deadlines for the client’s documents and information, and send out a request for the other side’s information.
   
   In some jurisdictions, it is common practice to exchange required initial disclosures. If that is not present in your jurisdiction, tailor the requests to your opponent so that you are not doing boilerplate requests for “everything you’ve got.”  Rather, examine what your positions are, what you need to support or clarify it, and go get the information that you need. Refutation of the opposing side’s position must be considered, so request any documents which may rebut or disprove the opposition.  For example, in a simple spousal support matter, you might need the other side’s financial affidavit, tax returns, current pay stubs, plus any other income sources (e.g., bonuses, gifts, trusts, second job, etc.).  In a pension division matter your request might include the annual benefit statement and the summary plan description for a private plan, or retirement records, retiree pay statements, and service history for a government plan.  For a custody case you might want to see school progress reports and report cards, plus a copy of the last two years’ medical and dental records.  
5. Outline your issues.  Make an outline of what issues must be resolved in the mediation.  This should include substantive ones (custody, decision-making on major issues, visitation for weekends, summer, holidays, travel logistics) as well as administrative ones (separation agreement vs. consent order, attorney’s fees if breach, incorporation of agreement into divorce decree, future mediation if disagreements or changes occur, etc.).  Send this to the client, giving he or she plenty of time to weigh in on any additional items they would like to address.  Perhaps the July 4 holiday is very important to the client and her family, and she wants to ensure that is addressed every year in the custody agreement.  The best way to get this information is coordination with your client.
6. Offer.  Prepare your first offer or response to the other side’s first offer, depending on who goes first.  If you do not know who is making the first offer, coordinate with opposing counsel and ensure one side is prepared to do so right at the outset of mediation.  There is no need to waste mediation time writing up an offer, and it is a disservice to your client.  Why? Mediation is not the time to discuss this because the client is responsible for both your fees and his/her share of the mediator’s fees.  Do this work when the client is only being billed for your hourly rate alone before mediation.  Send the offer to the client in advance of the next step…. the preparation meeting.
7. Preparation Meeting.  Always meet with your client to prepare for the mediation in advance and to assist the client.  The meeting should cover many topics, including but not limited to: i) discussing the mediation process.  Consider writing up a form letter you can send to every mediation client stating what the mediator will typically say and what to expect at mediation; ii) answering all client questions; iii) review your first offer or first responsive offer; iv) if you have not already done so, a frank discussion about the realities of mediation, e.g., mediation is not court, the mediator is not a judge, mediators will not be called to testify about what happened at mediation, the mediator can share information with the other side unless we say otherwise, and so forth; v) setting client expectations about how long mediation may take, how terrible the first offer will be, and how emotionally draining mediation often is for any client; vi) explain that mediations can either settle, impasse, or recess; vii) practical aspects of mediation such as where to go, what to wear, what to bring, and so forth.  Note that whenever possible, this meeting is usually best done separately from the rehearsals in the following paragraphs.
8. Determine a starting time.  Consider giving yourself some time with the client before the session begins to listen to any last-minute concerns or questions.  Showing up 30 minutes prior to the scheduled mediation has often paid dividends towards a successful mediation in the author’s practice.  Clients can be nervous about mediation, even though (or perhaps because) they control whether a settlement will be reached.  This is your way of showing a little extra consideration, and possibly assisting in reaching a settlement at the end of the mediation day.
9. Rehearse “give-and-take” with your client.  Neither side can demand results in mediation.  Your client can neither force a settlement nor have one forced upon her.  She has control over the outcome in the same sense as the other side does – no mediation agreement will result from the session without the parties’ agreement.  For this reason, you’ll want to do a “shakedown cruise” with the client to find out the answers to a lot of “what-if” questions.  A rehearsal might include the following give-and-take inquiries: Suppose the other side refuses to extend alimony beyond the desired term of six years?  What if they will not budge on the amount, not offering over $1,000 a month?  What can we trade if they will never agree to transfer the house over to you “free and clear”?  How do we respond when they demand a share of your pension?  What is your bottom line on child support (and I promise Ms. Doe, we will not share that with the other side without your approval)?
   
   Be sure to make your client think about the answers to these questions in advance of the mediation.  This will ensure that she is ready to confront reality and the dynamics of give-and-take bargaining.  Depending on the client, and his/her level of anxiety, it may be wise to have the client pre-determine his/her bottom-line numbers or positions, in conjunction with the legal advice provided.  The risk is that the client will be too ‘dug in’ to those positions to consider creative solutions during mediation.  However, for the right client, usually the very anxious client, this can help alleviate stress and lead to a more productive mediation. 
10. Prepare the client for what to say.  Go over with your client how the mediation will take place.  While this may include where to sit, how to dress, what to bring, what to wear, that is often best done in a prior meeting.  The focus here is more on when to speak and when to remain silent, how to respond when you ask him/her questions, how to signal the need for a break, and so forth.  It is very important to explain that first offers are often not what the client wants to see, and in most cases will produce an emotional reaction.  A prepared client is going to deal with this ‘first offer shock’ better than a client who has no clue what to expect and has never been prepared by her lawyer on this issue.
    
    It is generally recommended that a family law or domestic relations mediation does not involve any time with the parties in the same room.   A good mediator may bring the lawyers together (apart from the client) to quickly gain an understanding of the issues at play, discuss legal positions and postures, or answer complex legal questions. If the mediation will bring all parties together, emphasize the need to take a businesslike approach to the issues and the importance of controlling emotions so that principles, not passions, rule in the mediation room.  If your client needs to “vent” in such a mediation,  it may be wise to have him/her do it before the mediator only.  That way, the mediator can truly understand what motivates your client without the dangers of spending unnecessary time reciting past peccadillos or former faults, or inflaming the other side to the point that agreement becomes impossible.
    

During Mediation

11. Set time limits.  At the outset decide on stopping points, if applicable.  When will the lunch break occur?  At what time will the mediation conclude?  Are there any set-in-stone deadlines?  You do not want to be at the point where the two sides are about to red-line the previously prepared memorandum of the settlement, only to hear opposing counsel say, “Oh, I have to run - I have to be home by 6 because I have an anniversary date with my spouse!”
12. Listen to “Why?”  Many of the best advocates have tight lips and big ears.  They listen to the other side and, when a break occurs, then tend to follow up with “Why?” instead of responding immediately with a counterpoint.  Getting to the bottom of the other side’s position, with reasons, past problems or expectations, can be helpful in solving those problems in mediation.
    
    There’s no such thing in mediation as “That’s their problem!”  If a legitimate problem exists – not a feigned one – then the mediator and the parties need to understand it, explore it in depth, and try to solve it with smart lawyering and skillful drafting.  One of the advantages of mediation is the ability to be creative; do not be afraid to “think outside the box” with inventive drafting or creative options.
    
    Finding out what motivates the other side is the key to writing a successful agreement if those needs and requirements are genuine.  And if they are not bona fide needs, then listening to “Why?” will help to prepare a good counter-argument in reply.  Or, if the mediation fails, knowing the “Why?” will assist in preparation of a good case in court.
13. Role-play with the mediator.  If you’re having trouble getting your client to “come around” to a settlement, use the mediator in a role other than as messenger, just carrying offers back and forth.  Ask the mediator to “play judge” for a while, giving some opinions on how the issues would be resolved in court.  This can sometimes nudge a reluctant client into a settlement by using the neutrality, experience, and objectivity of the mediator as part of the persuasion.  Ask the mediator to explain the problems that are holding back the other side from agreement, as well as the goals that the other side has identified.  Consider asking the mediator what the temperature of the other side’s room is, or how they are responding from an emotional perspective.  Get the mediator’s suggestions on how to respond to those problems or to achieve a mutual fulfillment of goals.  Ask her to propose what can be done to win the settlement without “giving up the farm.”  Often the mediator has a much better idea of where the case could settle because she has the benefit of hearing both sides, and participating in both rooms. 
14. Use 3-way meetings.  It’s a good idea to meet with opposing counsel and the mediator alone to get to the bottom of an impasse.  Quite often the mediator will be able to see, explain, and articulate the issues and viewpoints which are preventing an agreement.  Perhaps he or she believes that movement on Issue A will produce more progress than dithering on Issues X, Y and Z.  Maybe there are some documents one side must produce.  Does the mediator see a “hidden agenda” on either side which should be mentioned first to counsel before laying it out before the parties?  Make an ally of the other attorney by committing to nudge and push your client in Area B if she’ll do the same to get movement in Area C and D.  Work on ways you and the other attorney can cooperate for mutual benefit through positive recommendations to the clients.  Focus on problems to be solved, not personalities.  Look to the future, don’t dwell in the past.
15. Should attorneys limit what they say?  Consider telling the mediator at the outset what direction you intend to travel with the case settlement.  For example, assume the client very much wants to sell the martial home, but she is not presenting that as a first offer for various reasons (perhaps to increase a support request).  It may be exceptionally helpful for the mediator to be able to gently (or not so gently) direct the opposing party towards the home sale.  The mediator could ask questions which steer the other side, such as “Have you considered selling the house?  That would also impact support, and I know you want to minimize your support obligation.”  This will not work for every case, but in many cases the attorney and client have at least an abstract picture of where they think the case positions must go in order to settle.  A mediation is often more successful if the mediator has been provided this type of information because they will then use it to help guide everyone to a settlement.
    
    You should make a studied decision as to what you say in the mediator’s presence and what you let the mediator tell the other side.  Sometimes this approach will enable the mediator, if allowed to sit in on the attorney-client session, to convey more clearly to the other side what is holding up an agreement.  When you do this, discuss it first with the client to decide how much role-playing there will be.  You might want your client to take a forceful position before the mediator, without you as the voice of reason.  Or it might be the opposite.  Or there might be no role-playing at all, with everything said available for the other side.
    
    The mediator will honor what you tell her about taking information to the other side.  Try to use this to your advantage.  Many mediators will start a session with the statement, “Whatever you say to me will be fair game for me to repeat to the other side, unless you instruct me otherwise.” Play an active part in deciding what the mediator can carry into the other room as what will remain behind.  If you don’t want the mediator to sit in on your counseling sessions with your client, say so.  That way, you can invite the mediator to join the two of you once you have firmed up your position or response, and not before.
16. Listen to the mediator.  When the mediation is slowing down or appears to be making very little progress, ask the mediator how to keep it moving along.  Mediators have a vested interest in effecting a successful conclusion to each and every mediation that they conduct.  Sometimes the mediator, when invited to comment, will respond with something dramatic: “You need to tell them that you’re fed up and will be walking out in five minutes.”  At other times, she’ll suggest small movements; for example, when the other side is only making minor adjustments to their position, you should respond in the same way with nickels and dimes for each counterproposal instead of big bucks.  Get the perspective of the mediator on what they’re saying in the other room, and how to promote prompt resolution.
17. Be persuasive.  There is no rule which says you have to leave your persuasive abilities parked at the mediation room door.  Are you adept at PowerPoint?  Prepare a set of slides which you use to show the mediator – or the mediator and the other side – at the outset of the session.  Do you have exhibits you’d use in trial?  Bring them. If the case involves equitable distribution or alimony, come armed with your spreadsheets and also your laptop in case some numbers need adjustment during the meeting.   
18. Close the deal.  Make sure there are no stones left unturned at the end of the meeting.  If you have, for example, settled everything but the pension, do not just leave it out.  If the pension is to be waived, say so.  If it is to be resolved in court, write that down.  If it is reserved for future arbitration or mediation, spell that out in the final document from the mediation. “Silence is golden” may be a good strategy in certain situations, but the seasoned domestic attorney knows that in agreements “Silence is deadly.”  The following mantra can assist a practitioner: When in doubt, write it out.  Omitting an item, such as the availability of attorney’s fees in the event of breach or the incorporation of the agreement into a decree of divorce, could easily become the subject for a later fight between the parties.
    
    Whenever possible, leave nothing for later resolution; if there is any such open item, write down exactly what it is, how long will be given for resolution, and what the consequences or default result will be if there is no agreement.  Consider building in an exact process for how to resolve it to minimize the risk of future disagreements.  For example, if the parties agree to divide up their personal property at a later time, a lawyer may want to say that each party will provide a list of all personal property items he or she wants within 25 days of the mediation, and the opposing party has 15 days to respond.  The parties will attempt to resolve this by mutual agreement for an additional 15 days. If the parties are unable to agree within the 15-day period, the parties shall return to binding arbitration, the mediator shall serve as the arbitrator, and each party shall pay 50% of the arbitration fees.

After Mediation

19. Sign the settlement.  If the case is to be resolved by a marital settlement agreement or separation agreement, draft a shell version in advance of mediation.  Share it with opposing counsel to iron out any disputes over the framework and legalese.
    
    When a session is heading toward conclusion, good advocates pull out their laptops or tablets and start to draft the agreement.  All too often a settlement is lost because the parties shake hands at the end of the session and fail to finalize the agreement.
    
    The document to prepare is the final settlement agreement, not just a brief handwritten memo.  If you can write up the entire agreement, you can usually close the case file on that issue upon leaving the mediation room, subject to any retirement division orders or a divorce in states that allow bifurcation.   Remember, the job is not finished until the paperwork is done.
    
    If your jurisdiction allows, a memorandum of judgment or short form court order may be appropriate in some cases.  The benefit of this method is it minimizes the ability of one party to have ‘buyer’s remorse’ and back out later.  It also allows for an entry of an enforceable court order as soon as possible after mediation.  Be sure to have a statement in the order directing one lawyer to prepare a draft of the final order, and that any drafting disputes will be arbitrated by the mediator.   Drafting disputes often cost clients a substantial amount in legal fees, and a short arbitration is a better path to resolving any drafting disputes that may arise on the final, more formal order.