Preparing for a Successful Divorce Mediation: A Family Lawyer (and Paralegal)’s Guide Our “Top Ten Suggestions” List We offer the following “Top Ten Suggestions” as a guide to divorce professionals (Sydney Divorce Lawyers and their family law paralegals) seeking to effectively prepare for a successful mediation. This list derives from our observations and experience as former litigators and now full-time Colorado divorce and family law attorney-mediators. We’ll follow this Guide to (Divorce Mediation’s) Preparation with a link to download a two page Family Lawyer’s Mediation Preparation Outline and Critical Checklist — designed to be reprinted and included in your case files, if helpful. Preparation’s Critical Role in Family Law and Divorce Mediation Success As true in mediation as in life generally, “good fortune” seldom is accidental. More often, success in mediation derives instead from the exceptional preparation of participating lawyers and of their family law paralegals. We repeatedly witness the concrete, positive results reaped by those lawyers and their paralegals who spend the time and effort to prepare effectively for mediation. Here, then, are our top ten suggestions for lawyers and their paralegals to effectively prepare divorce and family law cases for successful mediation. 1. Where possible, obtain and review documents, reports and information required to evaluate your case properly, in advance of mediation. Adequate advance knowledge and information of essential facts relevant to the issues at hand gives lawyers a distinct advantage in mediation. It places them in the superior position to develop settlement strategies, and evaluate settlement proposals of opposing counsel. Deferring mediation until both parties have had a reasonable opportunity to conduct meaningful discovery is generally prudent. (There are, of course, exceptional cases in which beginning some dialogue in mediation — even in the absence of complete discovery — may still make sense, to reverse or halt an increasing polarization of the non-communicating parties or even of their lawyers). 2. Provide opposing counsel adequate documents, reports and information necessary for evaluation of settlement proposals, both in advance of and during mediation. Mediation is most effective when parties exchange ideas and if necessary, additional information in support of them, not merely arguments. Certainly, adherence to the discovery requirements of Colorado’s new divorce disclosure laws provides for significant information exchange that will assist in lawyers and paralegals’ preparation of the case for an effective mediation. And, why give the other side an excuse to waste time in mediation? If there is discovery helpful for opposing counsel to understand the issues of the case, lawyers seeking to resolve cases in mediation forthrightly disclose such information in the mediation, if not well in advance. Of course there are exceptions, but the power of candor and disclosure in moving a case to settlement in mediation ordinarily greatly outweighs the element of surprise at an expensive trial with an uncertain outcome. 3. Evaluate and get agreements respecting whether the lawyers’ attendance is helpful in your particular case. Especially in disputes between parties with significant personal histories and emotional attachments (and thus, in nearly all divorce or family law cases), evaluate objectively whether the presence of the parties’ lawyers in mediation is advantageous. Just as isolation may serve the ends of litigation, the parties’ direct communication in the presence of a neutral (and thus without lawyers) often results in agreements and settlement of stalled disputes. Effective mediation lawyers rarely employ an inflexible rule (e.g., “I always attend mediation with my client . . .”), rather they evaluate the importance of their attendance on a case by case basis, and if necessary, secure safeguards for their clients to address legitimate process concerns. 4. Determine realistically who must be present or available to resolve the case (and get agreements in advance with the mediator and opposing counsel regarding their attendance and any ground rules). Surprises (“I’ve brought my new lover to this mediation”) in this regard are not helpful and delicate issues of privilege and waiver need to be resolved in advance, but effective mediation always requires an evaluation of who are the real decision-makers in a case. If a party is unable or unwilling to commit to a settlement without consulting a third party (for example, in family cases, the familiar new spouse or paramour), the participation of such third parties may be essential to resolving the case. Experienced mediators can assist in designing boundaries for sometimes uncomfortable arrangements, but if someone other than the parties holds the true power “to make it happen,” effective lawyers do not hesitate to identify this dynamic and insist on somehow including the third party in the mediation. 5. Fully explain (and contrast with litigation) the mediation process to the client. Many parties arrive at mediation without even a basic understanding of how mediation works and how its process differs from litigation. Many clients naturally fear any meeting with their spouse, former spouse or co-parent, especially one scheduled and prepared for in advance and with their lawyers attending. Lawyers and paralegals can remind their clients that the mediation process is informal and confidential, and that the collaborative nature of the mediation process seeks to afford a safe atmosphere to explore of a range of possible solutions. Effective mediation lawyers (and thus, the supporting paralegals meeting with the client) make clear to clients that mediation is not a debate and the mediator’s role is not to decide who is right and who is wrong, but rather to facilitate the discussion (and perhaps, assisting the parties to “reality test.”). Effective mediation results from clients who to participate in the mediation session and are encouraged to talk to the mediator in a focused manner during the process about what is most important, including how they feel about the situation and what they need. Client participation invests clients in the process, and allies them with the mediator as well as his or her insight as to the “other party’s” interests — an essential element in effective problem-solving. 6. Prioritize issues with the client and prepare approaches to settlement. Effective mediation preparation involves discussion with clients about the realities of economic or time constraints on mediation, and a prioritization of the issues to address. A typical two hour or even half day mediation session requires time (typically in separate rooms for each party, where the mediation includes lawyers) for introductions, for learning the parties’ overview of concerns, and for issue identification — even before actual problem solving can begin. Effective mediation preparation evaluates which issues can be more readily resolved, and identify priorities for the mediation. 7. Discuss the weaknesses of your case with the client as well as the range of possible or potential outcomes in litigation. Effective mediation lawyers, of course, detail their candid evaluation of the case, including potential pitfalls and weaknesses, with their client prior to mediation. This entails comparing the range of possible litigated outcomes (including counsel’s assessment of the costs of trial and its preparation), to the range of
