I first learned to mediate more than 30 years ago. It was not a direction I took initially in my career, but something I immediately recognized as a skill that can truly help clients and minimize the often long-lasting, negative fallout of traditional divorce proceedings.
Many years, trainings and cases later, I still believe mediation is a powerful tool in family law. As others consider exploring practicing settlement through mediation, I have learned a few things along the way, some lessons learned more painfully than others, which I would like to share.
Begin your discovery early. Depending upon opposing counsel and the case facts, consider exchanging information and records accompanied by a sworn statement acknowledging truth and full disclosure.
Also, determine your values as early as possible. Commercial property and business valuations take longer to acquire, but there is no reason why the underlying data cannot be obtained early in the case so the expert(s) can begin the valuation process.
Determine the bargaining style of the other party and their attorney. Is a bottom-line approach more likely to be accepted or should you request more in the beginning, recognizing that concessions will be made along the way?
When I serve as a mediator, I often see attorneys new to family law present proposals with extreme terms that have very little likelihood of being accepted by the other party, their counsel or a trial judge. It is crucial to determine the reasonable range of trial outcomes so the initial offering can be tailored to give room for negotiation, but not so high or extreme that credibility is lost.
Make sure your client is aware of the strengths and weaknesses of their case. We all know that the RCW 26.09.080 "just and equitable" standard provides wide latitude to the trial court. The client needs to have a full understanding of how the law and facts of the case impact the potential trial outcomes, the financial ability to prepare and try cases, and the review standard for appealed cases.
Address factual or legal weaknesses early in your mediation materials. Provide explanations where available, but disclose them up front to minimize the impact. They would come up at trial, so it is best to address them in mediation. Although there may be tactical reasons not to address weaknesses early, full disclosure (at least to the client) is always a good policy.
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