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The general assumption that Family Law cases are unlikely to be successfully mediated is untrue.
Emotions do run strong; however, there is a high success rate even for the most complex cases, with adequate preliminary work. Research shows people are generally happier (and more compliant) with orders reached by agreement than when judges make decisions for them.
Give mediation a fighting chance by dedicating enough time for the complexity of the issues. Scheduling complicated cases for inadequate time is a recipe for failure and a sad waste of client money.
Nothing is worse than a mediation that fails only because there wasn’t time to get it done. Consider scheduling a follow-up if an impasse is not certain, or ask for continued help. Many mediators are happy to continue discussions and revise offers post-mediation between counsel to keep the negotiations moving.
The formal pre-mediation statements are becoming a rarity. I understand. We are all busy. They are nice but not absolutely necessary and do add cost.
A good mediator will review the record and relevant pleadings ahead of time; you do not have to send those documents. An email or phone call is often sufficient. Just give your mediator a brief heads up on what the real issues are and where you may need help with reality-checking your client or the other side.
Be honest about the strengths and weaknesses of your case. Your mediator can help your client confirm your advice and assess their risks.
If you give us nothing, a seasoned mediator can wing it. You need basic information, however. If you don’t have adequate documents to prepare a marital balance sheet, run a support worksheet or support your parenting time position, the mediator will be scrambling to help you collect information on the spot, and sometimes it isn’t possible. I am happy to run the worksheets or a balance sheet, if we have numbers.
A proposed order ahead of mediation is nice but not necessary. If, however, you have specific wording requests (i.e., client’s complete revamp of the Holiday Parenting Time Guidelines), send that to your mediator so it can be dropped into the document.
Seasoned mediators have standard wording for Our Family Wizard, SoberLink Orders, etc. If you tell us prior to start these are a possibility, we can drop them in our drafts to save time.
One of the biggest benefits of mediation is creating an order that addresses specific needs of this family. Let’s put in the details that can avoid future conflicts.
If you know the case may involve a phase in of parenting time, asset sale, or transfer of a business entity, consider drafting that detail prior to mediation so we get it right. I will talk to my corporate, real estate or estate planning partners prior to your mediation when I know we need specific or atypical language.
I generally start my draft order a day or two before the mediation. For that reason, mediators much appreciate notice if you are actively negotiating prior to mediation.
Civil mediators often charge a fee for canceled mediations. Family mediators with hours of lost prep time each month for last minute cancelations are considering jumping on that bandwagon.
If your client is low income or the issues are limited, consider sending them to mediation with lawyers available by phone to keep costs down. We can call you with offers and get your review and advice prior to signature.
It isn’t ideal, but like bundled services, it is cost effective.•
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Kelly Lonnberg is a member of Stoll Keenon Ogden’s Evansville office.
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