Helping Family Law Clients Get the Best Results from Mediation

SOME SUGGESTIONS FOR LAWYERS ATTENDING WITH CLIENTS AT MEDIATION

Family law mediation will probably be the most important negotiation your family law clients will ever have.  The following tips will help you help them reach the best possible agreements.

WORKING WITH YOUR CLIENT

1.     Discuss the process

Say to clients early in the matter “Let’s talk about ways we can best/most quickly/most cheaply resolve your matter. Mediation is one way.”

2.     Choose the right mediator

There are different types of mediators and different systems of mediator accreditation.  Evaluative mediators, for example, focus on how courts are likely to resolve the dispute.  Facilitative mediators engage with parties in considering, discussing and understanding all of the needs and options of each person before negotiating what might be the best option to meet their respective needs.  

3.     Engage in a broad conversation with your client

Resist the urge to exclude from your conversation issues that would be irrelevant or inadmissible in court.  Listening to the client’s full story will:

  • reveal their real concerns
  • let them feel heard.  Until they feel heard, they probably will not be able to listen to and hear you, or listen to the other side
  • develop rapport and build up a bank of goodwill.  You can use this subsequently when you need to engage in some frank reality testing (without the client seeing you as being on the side of the other spouse).

Do not be fearful of or resistant to listening to your client’s unhappiness.  Listen for the positive aspiration that is implicit in every one of their complaints.  “She just won’t listen to me and the kids” can allow you to reply “It sounds like you need to find some new way to deal with the situation.  You and I should talk about the ways you can achieve that.”  A complaint from your client that “he’d rather see the kids and I be homeless” can be reframed by you as “so you think it is important we use mediation to discuss your different needs for the future?”

4.     Help the client prepare carefully

Discuss with the client before mediation:

  • What information do they need to make good decisions?
  • What are their needs, goals and aims?  Why are they important to them, and which are most important?
  • What are the different options which can best meet their needs and goals?
  • What does your client think the other spouse considers to be their needs and goals?  How can your client meet them whilst also satisfying their own?
  • What are simple ways by which your client can explain their goals and possible options to the other spouse without alienating them?
  • What are your client’s alternative options if no agreement is reached.  What needs and goals can they meet without the other spouse’s agreement.  Help your client understand the costs of not reaching an agreement including court costs and delays.
  • Explain the facilitative mediation process to your client.  If you do not understand the process, research or ask the mediator.  Does the mediator have pre-meetings.  How do they structure the joint meeting?  Do they expect your client (or you) to give an opening statement?
  • Have the client imagine themselves in twelve months with the dispute resolved.  How important will some of the current issues seem then?  Conversely, how will they feel if the dispute is still alive and perhaps they are involved in court proceedings?
  • Give legal advice. It is important that client’s consider all of their options.  Family law is highly discretionary and legal entitlements are educated guesses as to what a court might do.  
  • Explain to your client interest based negotiating versus positional or competitive bargaining.  A facilitative mediator will encourage interest based negotiations.

WORKING WITH THE OTHER SPOUSE (AND THEIR LAWYER) AT MEDIATION

1.     During mediation encourage your client to listen carefully to the other spouse (and their lawyer).  You can both ask them lots of questions.

The easiest and cheapest thing you and your client can give the other side is to carefully listen to them.  Careful listening does not mean you and your client need to agree with them.  You may learn about things they need which your client might be able give to them without giving up their own needs.  Listening to the other person will encourage them to listen to you, your client and your concerns.

2.     Gather relevant information and identify all possible options before making offers

People commonly decide on an initial position or course of action before they have gathered all information or considered all options – and are then reluctant to budge from their initial position.  If both parties do this, the only way to agree is to meet in the middle (which may result in a bad outcome for both parties) or not reaching any agreement at all.

3.     Do not dismiss the other side’s offer even if you (or your client) think it is unfair

Do not reject an offer from the other person outright.  Instead, refer to it as one option but suggest they might wish to consider some other options.

Think carefully about whether your client’s best response is to immediately make a counter offer.  It may be better to ask some questions about the other side’s offer – why do they think it reasonable, what information have they relied on etc.  Asking questions does not mean that you are agreeing.  Asking questions about their proposals may cause them to make concessions before you even need to make a counter offer.  At the very least, you will learn more about what they want and what they might be prepared to concede.  You or your client should explain why your client finds their proposal unsatisfactory.  Explain how their proposal could be modified to make it more acceptable to your client.  The other side might be more likely to agree to modifications to their proposal rather than accepting modifications to your client’s proposal.

4.     Carefully consider how you or your client should explain your client’s own offers and proposals

Your client’s reasoning should be stated before the offer is made.  If the offer is made first and then explained, the other side is likely to stop listening once they hear the offer and start thinking about their response (rather than listening to your explanation).  You and your client need to give the other side reasons to consider your client’s offer.  These might be positive reasons (why your client’s options meet the other side’s needs) or negative (they will do no better via other means such as doing nothing or going to court).  It may be better to use the positive reasons first and keep the negative ones (which will be heard by the other side as implied threats) for later if necessary.

If the other side does not accept your client’s proposal, ask what problems they see with it and how it might be modified to make it acceptable to them.  Consider making conditional concessions.  This involves suggesting your client might concede an issue (which is of significance to the other side but of less importance to your client) if they concede another issue (which is of significance to your client but of less importance to the other side).  Negotiation is fundamentally about discovering what the other side needs or wants that your client can give (without significantly compromising their own needs) and seeking what your client really wants in return.  There is almost always more than one way (and often three, four or more ways) to satisfy the different needs of separated spouses.  The key is to find the option that meets as many of the needs of each person.

Avoid presenting your client’s options as a “final” or “take it or leave it” offer.  This will be heard as a threat and may cause the other person to reject the offer.  The influence of such threats is only temporary and is lost immediately a further offer is made by you or a time deadline has passed.

WORKING WITH THE MEDIATOR

1.     Let the mediator control the process

You have a different role to the mediator.  Let them run the process.  Your job is to assist your client and help them make wise decisions.

It is fine for lawyers at mediation to discuss and disagree as to the law.  It is unproductive however for the lawyers to query the mediation process.  That is the mediator’s role which allows you to focus on supporting your client.  Resist the urge to jump to solutions (even if they seem obvious to you).  Good mediators help the parties come to agreements they can accept and live with.  This can take them some time.  The facilitative mediation procedure is carefully designed to allow them to do so.

2.     Let your client explain how they feel (but hopefully without them acting emotionally)

Emotions are part of being human and feature in all disputes.  Facilitative mediators are likely to allow or even encourage both spouses to explain how they feel and the reasons why.  It is not useful however for them to merely vent.

Compulsory mediation and family dispute resolution is increasingly required by legislation and courts. We provide mediation and dispute resolution services that satisfy these legal requirements. We recommend and encourage that lawyers attend at mediation to ensure the best outcomes.

Also our other page with advice for parties about getting the best results from mediation.

 

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