For Family Law Attorneys
TEN SIMPLE RULES FOR ATTORNEYS TO
GET THE MOST OUT OF FAMILY MEDIATION
copyright Susan M. Helms 2003, 2009
1. ADVISE THE MEDIATOR IN ADVANCE about: domestic violence, the need to end the session early, health issues of either party, inability to pay the expected fee, desperate need for coffee and doughnuts or smoke breaks, etc.
2. COME WITH FACTS AND FIGURES. If you have not yet completed a financial affidavit or exchanged mandatory disclosure, at least bring all the back-up documentation you can to mediation. You and your client will have some slack time available to do a financial affidavit, and a settlement will be much more likely if the parties can see the real numbers on credit card balances, account balances, and mortgage payoff figures. Come with your estimate of values, proposed distribution schedules, and support for your numbers. Tell your client to bring records and phone numbers that may allow him or her to check on further details during mediation. A call to the automated mortgage payoff line can be made during the session, or a retirement plan administrator might be able to fax over the last statement to the mediator's office.
3. DON'T ASSUME the likely outcome in court is the only correct outcome for your client. Even if you have a few issues that are a "sure win" in court, if your client is advised and is comfortable waiving such rights, don't stand in their way. Bring a blank "Acknowledgement of Advice Received" letter (A/K/A CYA letter) if you must, and have it signed then and there by your client.
4. ADVISE YOUR CLIENT OF THE COST of going to trial. If you haven't billed lately, get your bill up to date and add a trial retainer. Make sure your client knows that failure to settle could be expensive.
5. BRING YOUR RESEARCH. The days of trial by surprise are really supposed to be gone. If you have a slam-dunk case or an on-point legal treatise that will decide this case, bring it to mediation. A skilled mediator can make sure the other attorney knows about it, and can probably find out what the counter-argument is for you. Why spend all the time and energy to go to court, only to educate them there?
6. SETTLE THE ISSUES YOU CAN. You may think "all or nothing" is a good negotiating technique, and this may be true if conceding on certain issues would be useful as a tradeoff for issues you may not win in court. But if there are areas that are not in dispute, and there is no real tactical reason to hold back on them, have your client agree to a partial settlement agreement. If the kids are not at issue, get it on paper. If equitable distribution is not at issue but only alimony, agree on a stipulated distribution schedule that can be submitted to the judge and can only be disturbed by the judge if necessary to resolve an alimony issue. If there are genuine legal issues that must be decided by a judge, carve them out of the big picture. You need only leave enough room for the judge to craft an equitable decision.
7. THINK BATNA / WATNA (Best Alternative to a Negotiated Agreement / Worst Alternative to a Negotiated Agreement). This means to think through the best and worst case scenarios and discuss them frankly with your client. If you cannot guarantee a win, don't lead them to believe that it's a sure thing. If your best day in court will be a mixed bag, let them use the mediation process to choose what goes into their bag. Bring your wish list, and prior settlement proposals made, and prepare your client for compromise before they hear the mediator say it.
8. USE MEDIATION AS A DISCOVERY TOOL. Offer some nuggets, and request some. The mediator will be glad to facilitate the exchange of information to help the cause of settlement.
9. THINK ABOUT TEMPORARY SOLUTIONS to make life more liveable. If you don't have all the information necessary to reach a full settlement, take the opportunity at mediation to resolve minor temporary issues to prevent the parties from having problems while the court case progresses. Work out temporary visitation, bill payment, attorney's fees, etc. Or agree without prejudice to try rotating custody for a few weeks, and save the big battle for the final hearing (this would be the "call their bluff, see if they can really live with what they say they want, and gather ammunition for the final" approach).
10. NEVER SAY NEVER. Too many attorneys have said "I will NEVER allow a client to sign an agreement that...": (fill in the blank - commonly used options are below)
... agrees to pay permanent alimony
... agrees to a rotating custody schedule
... agrees to support based on less than full time employment for both
... agrees to make cash payments in exchange for retirement money
... agrees to leave a joint mortgage unsatisfied
... agrees to give the non-custodial parent the house... etc.
Keep in mind -- your role is to be an advocate and an advisor. You don't make the decisions. You give your client good advice based on your training and experience, and they make their own decisions. See reference to Advice letter above.
Attorneys who heed these 10 simple rules should be better able to settle the cases that should settle. Representation of a client doesn't simply mean standing up for them in court. We are both barristers and solicitors, and every client does not necessarily want their day in court. Many secretly dread it and want to end the dispute and move on with their lives. You can help them do so, while providing excellent representation, by maximizing the effectiveness of your mediations.
(Joe or Mary Client)
By your signature on this letter, you hereby acknowledge that I, as your attorney for purposes of the pending action for __________________ filed by _________________, have advised you of the following:
I have asked you to sign this letter to acknowledge that you have knowingly and voluntarily made the decision, with a full understanding of all relevant information and by your own free will, to enter a settlement agreement which is contrary to my advice regarding your rights on this issue.
I hereby acknowledge that my attorney has provided me with the advice written above, and that I have decided it is in my best interest to enter a settlement agreement that is contrary to this advice. I do so freely and voluntarily, without duress or coercion, and with a full understanding of the effects of my decision.
Date: _______________ ________________________
(Joe or Mary Client)