Mediation is a process in which two parties to a court case utilize a neutral, third-party (a mediator) to discuss their issues and attempt to resolve their own problems. In family law cases, mediation is required before the court will schedule any hearings. Requiring the parties to attend mediation first and foremost, allows the parties to put themselves in control of their case. There is still a very precise art to mediation…
Choose the right mediator for the case.
Choosing the right mediator is important. It is also important to have a mediator strong in their negotiation skills. The right mediator will be able to understand personalities of the different parties. The right mediator will be able to explain the same scenario in six different ways. The right mediator will have a thorough understanding of the issues of your case. If you have a divorce with a lot of assets, you may want a mediator who has a background in business or accounting. If you have a divorce with small children, you may want a mediator who has a background in psychology or training in parenting coordination. If you have a divorce that deals with domestic violence, you may need a mediator who has training in adverse childhood experiences or a retired judge who has a firm understanding of the law.
Decide when to have an attorney caucus.
An attorney caucus is the process in which 2 attorneys meet with the mediator without their clients. An attorney caucus is an opportunity for the attorney and the mediator to speak the same language about the issues of the case. In some cases, this is done early on in mediation to outline where the mediation process will go and any potential roadblocks you may face. In some cases, caucuses take place after a roadblock pops up in order for the attorneys and mediator to discuss if there is hope in saving the mediation and still achieving a resolution/settlement.
Where does the case go if there is no favorable result or settlement?
Many times, explaining to clients the cost-benefit analysis of mediation versus trial is a great first step in preparing for mediation. Mediation requires an attorney to attend and prepare for the mediation, usually at their hourly rate. Mediation requires you to pay a mediator, usually at their hourly rate. While a mediation for one mediator and two attorneys could average $3,000 in fees, preparing for a trial could cause upwards of $10,000 per attorney. Additionally, mediation is the opportunity for the parties to resolve their issues themselves. At a trial, a judge will have to make the ultimate decision, removing the opportunity for the parties to handle their case themselves.
If there is no settlement at mediation (sometimes called an “impasse”), the parties can continue to negotiate. At the same time, putting your best effort into mediation is the best opportunity for parties to resolve their issues. If the parties believe that they can resolve their matters at a later date, they may not take mediation as seriously.
Once there is no settlement at mediation, the attorneys and the courts will most likely put the case on track towards trial. This includes scheduling Case Management Conferences, Pre-Trial Conferences, and scheduling the actual trial. Additionally, this will incur more costs for the clients. Each court appearance requires an attorney to prepare for the hearing, travel to and from the hearing, and attend the hearing. Each court appearance will rise the client’s costs in the case.
Natalie Paskiewicz, Esq. of Paz Mediation says that law school trained us how to be lawyers, but “don’t ever forget to be human”. That was a quote she learned from a professor in law school. Because ‘lawyering’ is our job, we see pretty bad situations on a daily basis, whether it be divorce, serious injuries, victims of crime, or people losing their homes.
Natalie is a Florida Supreme Court Certified Circuit Civil Mediator & Arbitrator based in Pinellas County, Florida. Natalie shared with Feher Law on why mediation is an art. Simply put, lawyers are trained to solve a problem, not necessarily console a hurting person. As a mediator, it is important to understand each person having a role in mediation. When you understand the roles of each person it is easier to identify their goals. Some goals include money, closure, validation, guidance, or a combination of these. Each person in the room, including attorneys, clients, mothers, or fathers have their own goals. Identifying individual goals and eventually finding common ground which accomplishes that for everyone is the [or at least my] ultimate goal of mediation. Mediation can be so rewarding when you experience a moment when you’ve helped one or more of the parties realize their goal during the process. Sometimes people are unhappy with the outcome because they haven’t identified their goals. Without a goal in mind, one may have a hard time finding closure. Navigating these emotional aspects and translating those emotions into tangible things that can be negotiated is certainly an art. It’s oftentimes not pretty, but an art nonetheless.