Alternative dispute resolution, to avoid litigation, is all the rage.
The theory is parties who cannot live together can resolve their problems to their mutual satisfaction helped by a mediator or arbitrator. Proponents argue this also saves legal fees and costs. Mediation favors the aggressive bully and hurts the non-assertive or timid spouse. Frequently, rather than saving fees and costs, arbitration or mediation simply creates another layer of expense. We spend almost as much time preparing our clients for mediation as we would spend in trial. See My Favorite War Stories #5: Making the Best of Mediation, page 17, for an example of a mediation that back-fired for the party who arranged it.
Mediation is mandatory in contested domestic relations cases in family court other than temporary hearings, contempt of court proceedings, and Department of Social Services cases.
Mediation should not be necessary. Good lawyers should settle cases and protect the rights of their clients with the least hostility, antagonism, and expense. If the lawyers cannot settle, then mediation is required.
Understand these points and you will fare better in mediation:
• Two bad things and two good things can happen at mediation. Bad: you fail to settle or you settle for a bad result. Good: you settle or we learn much about the opposing party’s case and goals which help us prepare for trial.
• Mediators frequently terrorize litigants into settlement with two arguments. Litigation is expensive. You can reach a better resolution of your problems than a judge can. While these points are valid, they must not control you.
• Mediators frequently want to talk with the parties without the lawyers present. I universally oppose this. My client hired me because I have knowledge and expertise the client does not have. I advise my clients to respond, “I do not want to discuss any issue without my lawyer present to advise me.” • No one can require you to settle. Allow no mediator, lawyer, guardian ad litem, opposing party, or anyone else to pressure you into a settlement you oppose. Accept no settlement unless you believe it is fair, reasonable, and what you want. No settlement at mediation is bad but a bad settlement is even worse.
• Many times parties mediate successfully but then family, friends, paramours, coworkers, significant others, and other busybodies convince a party the settlement is awful. 2 Rule 3, ADR Rules. 17 This causes problems. I favor allowing anyone who might torpedo the settlement to be present at the mediation site so each party may talk with his or her significant others. Most mediators and lawyers disagree with me on this.
• Most mediated settlements are written agreements signed at mediation. Once a party signs the agreement, repudiation is often impossible and repudiation attempts can be expensive and disastrous.
• Mediation may be your last opportunity to get a favorable result while keeping your legal fees low. Try to take advantage of this opportunity.
• Neither hostile and acrimonious statements nor outrageous demands are conducive to settlement. Do what you can to make the opposing party to want the result you want.
• Be patient. Most successful negotiations are reached late in the day. Most impasses occur early.
• You and your lawyer must be on the same team with the same strategies and goals. This requires discussion and agreement before going to the mediation. Only one thing can be the most important. You and your lawyer must prioritize your settlement goals.
• Most mediators put the parties and their lawyers in separate rooms with the mediator going back and forth with offers and counteroffers. This is the most common practice but it is also the most expensive as it take almost twice as long. Also, it deprives the parties from hearing each other, which sometimes makes settlement more difficult as some parties just need to be heard.
• Relax and be on your best behavior. Do not frown, cross your arms, jiggle your leg, drink water, or display other bad body language. Exhibit what Mark Twain described as the confidence of a Christian holding four aces. Be pleasant, look people in the eye, and smile.
Arbitration differs from mediation. A mediator seeks negotiation and agreement by the parties. An arbitrator considers evidence, determines the facts, and decides the rights of the parties. An arbitrator does what a judge does with two major disadvantages, the dissatisfied party cannot appeal the arbitrator’s decision, and the parties must pay the arbitrator’s fee. Arbitration is rare in family court.
The mediator’s fee is almost always divided equally between the parties, subject to reapportionment at a final hearing. Most mediators charge $300 or more per hour and require an advance, often $1,000 by each party. With two lawyers and a mediator each charging $300 per hour, an eight-hour-mediation could cost the parties $7,200 or more. Consider that I will spend nearly as much time preparing for mediation as we spend in mediation itself.
Arbitration and mediation are another level of expensive bureaucracy designed to reduce the case load of the courts, taxing the litigants without additional expense to the taxpayers. South Carolina and California each require mediation. The difference is California pays the mediator while South Carolina requires the litigants to pay the mediator. Other very good lawyers disagree with this view.
Because mediation is required, we urge our clients to make the best of it.
UPDATE: Since I originally wrote this book I became a trained, certified family court mediator and have participated in many successful and satisfying mediations.