9 Elements of a Successful Mediation Consultation

“How can I help you today?” is a great way to open up conversation between mediation clients. However, you should think of your initial mediation consultation as more than just a chance to learn about the clients’ case — it’s an important opportunity to provide substantive value to the clients and lay the groundwork for a successful mediation.

Clients Want Guidance from the Word Go

Most clients haven’t ever been in mediation before. They don’t know what to expect, which is reflected in the standard questions that come up in nearly every consultation. Instead of putting the burden on the clients to ask those questions, take the initiative of answering them by default in the course of a thorough, informative initial consultation. This will help the clients feel at ease, establish you as a trusted professional, and get the ball rolling toward a successful mediation.

Standardize Your Consultation

You likely have a list of topics in mind that you intend to cover in every initial consultation. Even if you know that list by heart, consider documenting those topics in a checklist that you keep in front of you during the consultation, to be absolutely sure you’ve touched on everything. While mediation is a client-centered process and we want the clients’ voices to dominate the conversation, the initial consultation is one time when your voice needs to be more prominent. It would not be wrong to treat your checklist as a script, with opportunities for the clients to ask questions as you go along.

Here is a list of topics that I personally consider the minimum requirements for a successful initial consultation:

1. Get basic information about the clients, including names, addresses, phone numbers, and email addresses. Also get basic information about their children, if children will be part of the discussion. The level of detail to gather in the initial consultation is up to you, so long as any gaps will be filled in later in your mediation process.
    
2. Make sure the clients understand what mediation is, including principles of neutrality, self-determination, and policies around confidentiality inside and outside of the process.
    
3. Make sure the clients understand what mediation is NOT. If you are a lawyer, make sure the clients understand you’re not acting as their attorney. This point can’t be emphasized enough. Many clients struggle with it, even after it’s been explained to them, and will look to the mediator for legal advice. Mediators differ in where they draw the line, with some being more evaluative than others, but every mediator should be very clear with clients about where they draw the line.
    
4. Set the clients’ expectations about process during mediation, perhaps including a description of your mediation case flow. Consider giving them a handout with this information.
    
5. Educate the clients about any steps they’ll have to follow outside of mediation, such as filing for an uncontested divorce. Let them know what “homework” will be expected of them during the process, such as completing financial disclosures and other forms. Provide them with any materials you have on hand to help them with their homework.
    
6. Review the high-level decisions the clients will need to make during the mediation process. For example, in a divorce mediation, the clients will at least need to make decisions about alimony and property division. If they have children, they will need to make decisions about custody, parenting time, child support, and child expenses not covered by child support. Each of these topics can get very complex, and one of your choices as mediator is how much of that complexity to introduce during the initial consultation.
    
7. Discuss your fees and payment policies. Every client wants to know about this — it may be the very first question they ask!
    
8. Ask the clients to sign your agreement to mediate and fee agreement (which may be one combined document). The timing of this is up to you — if the clients haven’t already decided that they’ll work with you, consider waiting to introduce these documents until after you’ve provided some value (increasing the likelihood they’ll hire you on the spot), but before you get into the thick of mediating substantive agreements. Just be sure that you’re clear with yourself about when you’ll require those signatures!
    
9. Answer any questions and address any immediate concerns the clients have.

Supplement with Handouts

That may seem like a long list, but with a standardized process, it’s easily covered in about 30 minutes. Much of the material can be provided in document form, which clients tend to really appreciate. For example, my standard packet of materials for divorce clients includes:

1. A description of the filing process for uncontested divorce process in Massachusetts, including the timeline from filing to final judgment.
    
2. A checklist of documents required to file for an uncontested divorce in Massachusetts.
    
3. A checklist of topics that need to be addressed during the mediation process, which is more detailed than what we discuss during the consultation.
    
4. For parents, a list of topics we’ll be covering as part of the parenting plan.

I cannot tell you how many times I’ve seen clients pull out these documents and refer back to them during the mediation process. They are a valuable resource for clients and cost nothing other than the paper they’re printed on. They also feed into the rule of reciprocity, which increases the likelihood they’ll choose to work with you beyond the initial consultation — a nice side benefit of simply being helpful to clients.

Do you have any topics or materials that you consider essential for the initial mediation consultation? Share them in the comments section!

                       

Rackham Karlsson

Rackham Karlsson is a Family Law Mediator and Collaborative Attorney based in Cambridge, Massachusetts. He is the contributing editor of Family Mediation Quarterly and a graduate of Harvard Law School. MORE >