Anatomy of a Mediation: Tips to Consider at the Outset

It is no secret that our family courts are overburdened. It often takes a long time to begin, conduct, and conclude contested hearings and trials. The judicial resources are spread too thin. The alternative that many litigants are choosing is mediation with either an experienced matrimonial attorney or a retired family judge. The reasons are obvious. Clients can select their mediator, they get to tell their stories, and the process is substantially less expensive than utilizing the courts.

Not every litigant sees mediation as an alternative. Some are uninterested in resolving their disputes without hearing from a woman or man in a robe. But for those that do, here’s how it goes:

It starts with choosing the right mediator. The lawyers for each client assess the case to determine the best candidate to mediate the case. Selecting an appropriate mediator is like seeing a specialist for a medical problem. At trial, the parties may be assigned a trial judge with limited experience in family law during his or her legal and judicial career. However, the parties can select a mediator with many years of family law experience or a mediator with specialized knowledge or expertise in high-conflict child custody cases or complicated financial matters. It is comparable to when a patient with a heart condition sees a cardiologist or an individual with a knee issue goes to an orthopedic surgeon.

In selecting a mediator, the lawyers involved will consider these questions: Would a retired family judge or experienced family lawyer be the right fit? Would the parties work better with a male or a female? Is the right person available? Does that mediator have the time to work with the lawyers and the parties and pay attention to the matter? Sometimes, the parties and their counsel may choose to have a mediation duo. That might be a male/female mediation team, an attorney/mental health professional team or an attorney/accountant team. Selecting the right mediator enhances the chances of success, so it is often advisable to speak with lawyers who have used the mediator the legal team is considering.

Before the mediation, attorneys must submit updated financial affidavits, proposed orders and confidential submissions to the mediator. In these confidential submissions, attorneys tell the mediator what they believe he or she needs to know but what they don’t want their adversaries to be aware of. These might include providing an understanding of marital fault issues, the psychological makeup of the other side and why the case has not settled.

Mediators also like to understand what has already happened in court and review any settlement documents. They often want a candid assessment of each lawyer’s case’s strengths and weaknesses.

There are also decisions about others who will participate in the mediation. If custody is involved, a Guardian Ad Litem may attend. A forensic accountant may be present if there are complicated valuation disputes.

On the day of the mediation, the mediator will usually have the parties and lawyers meet in a conference room. There, they will discuss their experience and the ground rules for the day. It is generally the last time everyone is in the same room. Usually, the mediator takes the plaintiff first and plays shuttle diplomacy between the two sides. During the session, the mediator often encourages each side to change their settlement positions, offers creative solutions, and provides insight into the risks of going to trial. While mediation is not binding, the mediator’s view of the case is often persuasive. It is important to note that mediation is private and confidential. The discussions that take place during mediation are inadmissible in court. Parties are free to make creative suggestions about resolving their case without fearing having those suggestions used against them at trial if the matter does not settle at mediation.

Generally, mediation is successful because the clients have already agreed to participate. This signifies that they want to resolve their cases without going to trial.

If the mediation is successful, the mediator will often draft a terms sheet, have the parties execute it, and one of the attorneys will prepare a divorce agreement to be presented to the court for an uncontested hearing.

Not all mediations are successful. However, those that don’t resolve the matter do benefit the attorneys by giving them an understanding of the type of case the other party will be trying.

Mediation is not for everyone. However, it can be a viable alternative to litigation. It allows the parties to draft a comprehensive document that addresses all their needs. A successful mediation ends the litigation and any appeal and allows the parties to move on with their lives.

Frederic J. Siegel is the managing partner of Siegel, Colin & Kaufman, P.C., where Judge Thomas D. Colin (Ret.) leads the mediation/arbitration department.