By Douglas J. Manning, Partner, Certified Specialist in Family Law
I have provided services as a mediator and arbitrator for several years. In addition, I have conferred with other mediators in the field. Given our experiences here are some suggestions to make the best use of family mediation.
- Be prepared – Review important issues and facts before you arrive. Be sure that the other party (or his or her lawyer) has all the information you will be relying on in advance of the mediation. Be sure you have all the facts and information you need to make a decision. Mediation is most effective if everyone knows the facts in advance and has a chance to think about those facts before meeting.
- Consider your options – Think about a range of settlements that will meet your needs. Think about the range of options the other party might be prepared to accept or offer. Mediation offers the opportunity to resolve disputes in more creative and flexible ways than can a judge. Do not set a bottom line. You are attending mediation so that the other party will re-evaluate their case and seek settlement options. You should be prepared to do the same.
- Know your legal costs – Know what further legal costs may be incurred by you if you do not resolve the matter at mediation. The cost of settling early may be an important factor as to whether or not you wish to resolve the matter by way of mediation. Further negotiations between counsel or further litigation can be very costly.
- Know your lawyer’s role – In mediation, the mediator’s job is very different than a judge in a courtroom. What you want is to do is to convince the other party to accept a settlement you can accept. Your lawyer and the mediator will want to keep the lines of communication open. Acknowledging the other party’s strong points and holding back on statements that might offend the other party are good tactics for you and for your lawyer.
- Know your case – Be sure that you fully understand what the possible range of outcomes are if you were to choose to pursue litigation or other options than mediation. Ask your mediator to give a realistic assessment of your risks and possible outcomes (good and bad) should you fail to settle your matter.
- Participate – A significant part of the mediation is discussion between the parties while being assisted by the mediator. Lawyers have an important role to play, but often it is the clients’ participation that makes the medication successful.
- Focus – Be clear about your concerns, your needs, and your objectives. Be prepared to discuss these. This type of information assists the other party to formulate settlement offers that satisfy your objectives.
- Trust the mediation process and the mediator – The process may seem foreign to you. It might be different than other negotiations you have been part of. Remember, the mediation process is a proven way to resolve disputes.
- Listen carefully and respectfully to the other party – Think about how you listen. Let your body language tell the other person you are prepared to listen and prepared to discuss. Speak carefully and respectfully to the other party.
- Be assertive in stating your concerns and viewpoints – Avoid language that will antagonize the other party but state your position clearly and succinctly. Do not threaten, accuse or give ultimatums. You will more likely achieve success if you are hard on the problem but easy on the person. Try to communicate in a neutral, non-judgmental way.
- Be willing to persuade the other party about the rationality of your position. Look for outside information that the other side will respect, that supports your viewpoint. Your lawyer and the mediator will be able to supply information as to how a Court may decide your matter based on how it has decided similar matters.
- Be open to persuasion – Be open to creative solutions. Part of what makes mediation successful is that people find solutions that no one has thought of before. In order to do this, you should come to mediation with an “open mind”.