Law Tips: Mediation from One Divorce Lawyer’s Perspective, Part 1

It’s my pleasure to welcome to Law Tips Bruce Pennamped, Carmel, Indiana, to share his particular expertise in mediations. He brings valuable pointers for minimizing your client’s regrets and preserving your professional reputation.

From a practitioner’s perspective what is the best way for a divorce lawyer to prepare for and work the mediation session?

In my view, it is to get the issues framed before you arrive at the session. The work should be done and the outcome communicated to the mediator prior to the 11th hour, i.e., the night before the session. The mediator’s job is not to sift through the discovery and/or “figure it out” for the parties. If left to those devices the process will be more cumbersome, frustrating and expensive than need be and, more often than not, produce some sort of buyer’s remorse after the fact.

According to Ira Daniel Turkat, PhD, Licensed Psychologist, Family Law Litigation Strategist, in an article published in the American. Journal of Family Law, Vol. 28, Number 3, Fall, 2014: “A recent Harvard Negotiation Law Review found in a five-year period more than 1,000 state and federal decisions reported in which mediation itself was the subject of litigation. (FN omitted). This should come as no surprise because it is not uncommon to hear an experienced mediator profess that, ‘one definition of a good settlement is when both sides are equally unhappy’ (FN omitted) or that ‘a truly good settlement is one that leaves everyone unhappy’. (FN omitted). Although not a universal viewpoint, if many start with the notion that a ‘good’ mediated agreement will produce up to I00 percent of clients unhappy with it, reducing settlement discontent would appear increasingly unlikely.”

So what, you may ask? The “what” is my exposure from a professional standpoint and your reputation as a mediator.

As I prepare for mediation I try to minimize the possibility of “settlement regret”. As Dr. Turkat posits: “The effort to prevent settlement regret begins by avoiding, eliminating, or minimizing those factors believed to increase risk for its development, when possible ….. first steps might include the following:

  1. Read your client well so that you don’t encourage adopting the wrong language or terms.
  2. Aim to create an agreement that ends conflict.
  3. Approach settlement as a means to an end and not as the primary goal.
  4. Reduce or eliminate unnecessary pressures to settle.
  5. Do not encourage a rush to an agreement at the expense of proper consideration.
  6. Approach unresolved issues with specificity over ambiguity.
  7. Do not advise silence on known issues of concern.
  8. Do not create terms that sound right but are unrealistic.
  9. Anticipate where things can go wrong and create terms to prevent that.
  10. Articulate how the other party could out maneuver the final version of the proposed agreement.” ld p. 128

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We’ll take a break at this point to digest Mr. Pennamped’s introductory pointers. Next week he’s back with us at Law Tips to delve further into his mediation objectives and practices.

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About our Law Tips faculty participant:
Bruce M. Pennamped, Cross, Pennamped, Woolsey & Glazier, P.C., Carmel, IN. Bruce limits his practice to Family Law. He earned his BS and JD from Indiana University. Among the programs and activities he devotes time to are:

  • Certified Family Law Specialist by and, Co-Chair of, Family Law Certification Board;
  • Fellow of the American Academy of Matrimonial Lawyers;
  • Serves on the Indiana Child Custody and Support Advisory Committee, a Committee created by statute to make recommendations to the Indiana Supreme Court on the Child Support Guidelines;
  • Chair, participant on numerous panels, and author of texts for Indiana Continuing Legal Education Forum;
  • Pro bono Volunteer and Attorney, Hamilton County Guardian Ad Litem Program.

About our Law Tips blogger:
Nancy Hurley has long-standing connections with Indiana lawyers. She was formerly a member of the ISBA and IBF staffs for over 30 years. Nancy’s latest lifestyle venture is with ICLEF. We are utilizing her exceptional writing and interviewing skills while exploring how her Indiana-lawyer background fits with ICLEF’s needs. When she isn’t ferreting out new topics for Law Tips, her work can be found in our Speaker Spotlight blogs, postings on the ICLEF Facebook and Twitter pages, and other places her legal experience lends itself.

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