JAMS ADR Blog by Chris Poole
Mediation, the ADR vehicle most commonly used in family law cases, frequently results in a final settlement – but often only after a marathon session dealing with the many important issues in the lives of family members.
There are ways to improve the process and results of family law mediation. The keys are open communication, adequate preparation, proper timing and mediator selection.
Open Communication – With the Opposing Party and With the Mediator. Pick up the telephone early in the case. The working relationship you develop by actually speaking with reasonable opposing counsel can save time and money. While it may seem that using email is more efficient, it often takes more time and creates additional conflict.
Once discovery is reasonably complete, and the parties have had sufficient time to begin addressing the emotional and financial upheaval of separation, you can develop creative potential solutions with your client. Exchanging mediation letters with legal issues defined and important documents attached far in advance of mediation can streamline the mediation process, and increase the likelihood of resolution on mediation day. Also, many mediators make a pre-mediation call, in which attorneys can provide information that is often helpful to the mediator in finessing trouble spots.
Preparation – Worth the Effort. An attorney who is well prepared for mediation has not wasted time – if the case doesn’t settle, it is well on the road for trial. If it settles, as most cases do, mediation will have saved time, money, and emotional stress for the parties.
Proper Timing and Mediator Selection. Family law cases have emotional timelines, distinct from other types of litigation. In many cases, it takes several months for one party to reach a stage of partial equilibrium. It is not helpful to attempt to settle family law cases before both parties have reached that comfort level. But when both sides are emotionally ready and have enough information regarding the facts and the law, mediation can allow them to avoid the financial and emotional costs of trial and move on with their lives.
When attorneys have worked together for several months, they can identify a mediator with the listening skills, depth of knowledge, temperament, and creativity to help the parties achieve resolution. By focusing on what is just and equitable for both parties, attorneys and the mediator can achieve a compromise solution that is acceptable, one that meets the needs and abilities of both parties.
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