Law Tips: Mediation from One Divorce Lawyer’s Perspective, Part 2

Welcome back to Law Tips as Bruce Pennamped provides his valuable perspective on preparing and working the mediation session. In case you missed last week’s blog, you’ll find it below. Now let’s hear more on Bruce’s tested mediation techniques. One of the objectives he emphasized earlier was: ‘”As I prepare for mediation I try to minimize the possibility of ‘settlement regret’.“ Join him as he discusses those efforts:

My preference, except in unusual circumstances, is to deal with all the issues at once as opposed to separating the property matters from those relating to the children. While arguably not legally linked the dynamics change significantly when separated. In the case of the custodial parent it is impossible to understand how the economic circumstances arising from the disposition of the property will affect his/her ability to support the child if you do not know what will be received from the marital estate. The custody orders may well effect how the marital estate is divided.

Generally, I provide a settlement offer (in the form of a Settlement Agreement formatted in WORD so it can be edited as the day goes on) and Marital Balance Sheet (“MBS”, formatted in EXCEL again, to edit as the day goes on) to the other side prior to the session. Obviously, both are approved by the client prior to transmittal The practice allows the client to focus on the key issues and to review the “boilerplate” prior to the session. At the time I send the offer and MBS to the other side I copy the Mediator. Hopefully, a response will be forthcoming a reasonable amount of time in advance of the session.

The objective is to have a “conformed” MBS and a Settlement Agreement on which the differences are noted when we arrive at the session. If that does not happen I may request the Mediator allow me and my client to arrive at the session a reasonable amount of time after the other side so as to give the other party time to formulate a counter. If the other side is unwilling to allow me to appear on that basis, depending on the complexity/acrimony, I may request a premeditation conference in an effort to make sure everyone is on the same page. A side benefit is that the client usually appreciates the fact that he/she is saving money by not sitting around waiting for a response.

There is an inherent friction between Rule 2.7. Mediation Procedure (A) Advisement of Participants (3)-(5) and divorce mediation. In some instances I look to the Mediator to reinforce the efficacy, or lack thereof, of the proposal under consideration as such reinforcement is generally needed to move the day along. A mediator who lacks direction is akin to a counselor who listens but provides no guidance. Neither assist is the resolution of the issues.

While I explain the process in advance of the session the advice I give to my clients prior to and throughout the session on protocol is generally limited to two primary pieces: 1.) if the client desires that the mediator not share the substance of the discussions in our room with the other side, he or she, must advice the mediator before that person leaves the room; and, 2.) if there is “buyer’s remorse” or “settlement regret” after the fact it is too late. Typically, I do not ask the mediator to leave the room. If the mediator is not present for all the discussions he/she lacks a true understanding of the dynamics of the room and is less able to manage the process.

In the end my goals are to: a.) assist my client reach the best result possible through the mediation process with a minimum of “settlement regret”; and, b.) to be in a position to manage “settlement regret” if it manifests itself after the fact.

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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.

Thank you for reading Law Tips. You may subscribe to this weekly blog through the RSS link at the top of this page.  Also, you are encouraged to comment below or email Nancy. She welcomes your input as she continues to sift through the treasure trove of knowledge of our CLE faculty to share with you.

ICLEF • Indiana Continuing Legal Education Forum, Indianapolis, IN

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