Family Law attorneys are invited to "THINK" Early Mediation

Mediation is a tool that helps to settle cases.

Many attorneys think of mediation as a process that happens late in a case, where parties and their attorneys attend a session with a mediator. Preparation for the session often includes a mediation summary that lays out a strong position, and the sessions themselves are often handled on a "shuttle basis, with the parties never talking directly to each other. This can be an effective tool for settling the cases, but the drawback is that expenses have been incurred, and emotions have been ignited at that point. Although the case may be technically settled at these mediations, animosity between the parties may be heightened.  This can carry forward in post-judgment motions or in ongoing parenting disputes.

Early Mediation is another tool that can be very effective at settling cases.

In Early Mediation, the parties meet with a neutral mediator early in the process, sometimes even before the case is filed. Attorneys may participate in the sessions, but often they serve a role of preparing and coaching the parties prior to and between sessions. Attorneys also review any written agreements prior to parties signing them. This type of mediation offers peaceful, personal and private solutions, and most often saves time, money, and stress.

The mediator listens to the parties, and asks open-ended questions designed to encourage them to think about their underlying interests instead of focusing on specific positions; re-frames issues to be neutral and applicable to each party; and ultimately focuses on helping the parties reach agreements. Often the agreements reached at the earliest stages, even if not the final settlement of the case, can be crucial in bringing stability to children's schedules, finding reasonable and workable solutions to covering interim financial obligations, or deciding how to get answers to questions that will need to be resolved such as real estate or business valuation. As mediation progresses, these agreements can be critical building blocks in finding creative settlement solutions, that may not have otherwise emerged.

To make full use of this powerful tool, we suggest that you remember to "THINK"  Early Mediation:

Talk to clients about mediation in the initial conversation, and again throughout the process. Make sure they understand that Early Mediation is a tool that may allow them to reach peaceful, personal, and private solutions and to save time, money and stress. If issues come up during the case, think about mediation instead of motion practice. Talk to the other attorney about using mediation, and educate them about the benefits of Early Mediation.

Have supporting information and materials available to give to clients. Some courts pass out information about mediation at the time the case is filed, others order cases to mediation as soon as they are filed. As the courts become more and more supportive of mediation, attorneys who are knowledgeable and have materials available, will be providing a valuable resource. Contact Family Mediation Council at 800-827-4390 or visit familymediation.com for information.

Inform clients about their options for settlement and help to coach and prepare them to participate in mediation.  Make sure they are aware of the costs and potential benefits associated with pursuing all of their options.

"N"able clients to successfully complete the process.  In addition to coaching, this can include setting the example of a commitment to the process, so that if a settlement does not occur in the first session but progress is made, you advise your client to continue trying. Another way to show a commitment to the process is to allow a client to make a concession that you might not advise making, after fully informing the client of your advice. You also might find yourself holding off on formal discovery, until after mediation so that the information can be shared more informally in the context of the mediation sessions.

Know a full range of experienced mediators. The mediators who practice the late stage model are generally well known, and can be very effective. It is reasonable and beneficial for practitioners to also be familiar with other resources, so that they can draw upon them in appropriate cases. Your court should have a list of mediators who are approved under MCR 3.216 to receive court ordered mediation referrals. Those mediators have taken the 40 hour domestic relations training, at least 4 hours of domestic violence training, and must have practical experience and advanced training. You can also check familymediation.com for county-specific referrals to qualified mediators. Consider, in addition to the mediator's training and experience, whether the mediator agrees to follow established ethical standards.