Sometimes the parties don’t realize how stressful mediation can actually be for the mediator. Mediators are trying to juggle lots of different issues and emotions and keep them all straight. For a lot of mediators, they are also balancing their private caseload at the same time.
As an experienced Indiana mediator, I make it a goal to have as few distractions as possible during mediation so I can seek to fully address the goals and objectives of all involved parties.
I find the first impression from a mediator to be important. Generally, clients are making assumptions and judgments as soon as they walk into an attorney’s office. In most mediations, especially family mediations, I generally want the parties to be moved to their separate rooms as soon they get there. It can be very awkward to find out during a mediation that there is a history of domestic violence or other types of abuse or emotional issues where the client feels that you are not protecting them before the mediation is even begun.
I want my clients to understand that I have read over all the available information provided by their attorney. I also want them to know that I have reviewed the court’s chronological case summary to see what exactly is pending, as well as to understand that I know the names of their kids or the names of their company, if that is pertinent.
If possible, I want to find a common tie that I have with each party so that each client feels that we have something in common – such as a similarly aged child, similar hobbies, similar work experience, or the like. I think it’s important to inform the parties that this is their day and that they have the ability to do things in mediation that the court would not or could not do.
It is critical to ensure that clients fully understand the process of mediation. Thus, even though the vast majority of my cases involve clients who show up with lawyers, I always have the participants fill out a one-page acknowledgment about what I can and cannot do. I clarify how the parties wish to be addressed – some clients are very particular about this. I also cover the highlights regarding confidentiality, legal advice, the inadmissibility of settlement offers, and the fact that I cannot be a witness.
Even when I’ve done my preparation with a client and covered all the basics of mediation, a large portion of individuals forget a lot of these basic rules. I always try to remind clients about these things and go over the kind of things that the mediator will cover with them again, as individual typically feel good about their lawyer when he or she predicts pretty closely how the process actually goes.
It is also vital to ensure clients understand that the initial proposal from an opposing party may be extremely far from what they believe is reasonable and may simply reflect that the other side wants to move in multiple steps over the course the day. The client needs to understand that this is a slow process. Mediation is a marathon; it is not a sprint.
There are three general schools of thought about how parties and clients should interact with a mediator.
The first school of thought is that the mediator should be privy to basically everything. I would call this an open book philosophy. The lawyer encourages the client to be open with the mediator about information and only occasionally interjects in sessions with the mediator.
The second school of thought is that the mediator is a potential adversary and should be kept at bay. For example, I have had mediations where a lawyer tells me that I should not direct any comments directly to their client while we are in the same room; that everything should essentially go through the lawyer. In these cases, the lawyer frequently admonishes the client not to be candid with the mediator and requests that the mediator leave frequently.
The third school of thought is a mixture of the first two. The lawyer and the parties see the mediator as a means to an end and recognize that there needs to be some free dialogue to move the matter along.
In my personal practice, I’ve probably used all three of these philosophies in different cases. The client needs to understand which approach you are inclined to use. I’ve had clients who have revealed their bottom line during the first discussion with the mediator which may be counterproductive to the ultimate settlement.
Individuals sometimes have hidden goals that could potentially undermine their position if the mediator finds out about those. For example, if a client is in desperate financial straits and must resolve a case quickly. In a few family law cases, one of the parties made the wonderful decision to schedule their wedding date with their new significant other before they were actually divorced from their current spouse. As a result, they were desperate to get the divorce done as soon as possible. Make sure that hidden goals such as these remain hidden as long as possible.
In civil cases, the parties are supposed to have a person available with full settlement authority. Unfortunately, sometimes some parties play lip service to this and designate a person who is supposed to have full authority but really doesn’t. The insurance adjuster may indicate that he or she has full settlement authority to settle the case, but the adjuster in person or on the phone only has authority up to X amount. The adjuster may have placed a low reserve on the case which ultimately requires another person’s approval to settle the case if new information comes up which requires a substantial reassessment of the case.
At times, there are nonparties who really need to be involved in decision-making. For example, I mediated a civil case where one of the parties’ parents were ultimately going to be paying the lion’s share of any settlement. I had another case where a party was certain that his father would personally sign for a loan in order to refinance some real property. In the past, I used to take a very hard line on any third party showing up without the express approval of the other side. In the recent past, particularly with the advent of cell phones, I would honestly rather have the person present to hear all the information presented rather than one party’s interpretation of that information.
In family law cases, the parties may want to have a new girlfriend or boyfriend attend mediation or have a close relative appear. All these are fraught with peril. Even if you, as the mediator, are very clear that they cannot participate in mediation, I have had occasions where, nonetheless, the person shows up and plans to simply wait in the waiting room the whole day and hang out. Several of our local mediators have essentially taken the position that they will allow the presence of a third party so long as the mediator believes that it is helpful. If the third party becomes disruptive, the mediator has the absolute right to make the person leave. I’ve actually been surprised in a few cases that a family member has been an asset in getting the case resolved rather than a liability.
In almost 30 years of practice, I have only had one case where there were two mediators. The case involved a very complicated fact pattern which included a very contentious divorce and civil litigation involving related parties and the divorcing parties. One mediator had substantial family law experience and the other mediator had substantial civil experience. The case was ultimately settled due to the two mediators’ ability to cover all of the issues in play, particularly the emotional issues involving the divorce. As an experienced Southern Indiana mediation lawyer with decades of legal experience, I have mediated several family law cases which had civil litigation components as well, since my practice involves both of these areas.
In a few family matters, I have essentially co-mediated with a financial advisor retained by the parties. In both cases, the parties had substantial assets and were trying to figure out ways to make any settlement as tax efficient as possible. The financial advisor traveled with me from room to room and tried to analyze the financial needs of the parties after the divorce (one spouse was the classic breadwinner and the other was a stay-at-home parent) and how the parties could meet those needs with particular asset allocations. There were also some business issues involved and the financial advisor provided input about certain valuation issues involving the business. Ironically, the financial advisor had been used as an opposing expert in several of my larger cases. As a mediator, that took a lot off my plate, and both parties appreciated getting immediate feedback on particular tax issues.
In another case, both parties brought their business valuation experts to mediation, and we had a separate caucus between the lawyers and business valuation experts to determine what really were the points of contention between the experts. The opposing experts knew each other and were able to come down to a reasonable basis for a compromised number on the business which greatly facilitated the resolution of the case. While having multiple mediators or experts can be beneficial in certain situations, this largely depends on the assets and complexities involved. For example, all of these cases involved substantial assets, as the cost of having these professionals appear live for several hours was substantial.
If you are interested in exploring mediation, I invite you to call our office to schedule a consultation. I can listen to the facts of your case, explain your options, and assist in pursuing resolutions that work for all involved parties.