Have you reviewed your mediation techniques lately? Let’s take a few minutes to go over a list of practical considerations from Jill Goldenberg Schuman, a mediator, arbitrator and lecturer in family law. Here are some reminders she included in her recent CME for Family Mediators program:
Practical Considerations in Family Law Mediations:
- Call attorneys in advance to obtain a better understanding of the case and/or determine preliminary issues.
- Consider staggering start times.
- Consider giving back up dates.
- Review statements in advance. Develop a mediator’s strategy but be careful not to push what you believe is the best solution right off the bat.
- If you have marital balance sheets or information in advance of the mediation, create a comparison so the attorneys and their clients can readily identify the disparities in their numbers. Just the other day at the conclusion of mediation we realized that one attorney’s number included several accounts so there was double dipping. It allows each attorney to look at their sources and offer corrections.
- Be Patient.
- Listen- repeat back if necessary to make sure you have it right
- Problem Solve- do not just carry offers back and forth- offer solutions. I have a tip sheet for some that have arisen.
- Be compassionate.
- Be open to learning- allow an attorney or a party to educate you on an area.
- Bond with the attorneys and parties. They need to trust and respect you.
- Identify each party’s goal and priorities of goals early on in the day.
- If having a hard time- go off “balance sheet” – ie, itemize what each side is getting.
- Explore realistic settlement with the attorneys and parties based on the competing spreadsheets. Taking in an offer of 80% on a spreadsheet that is way higher without justification doesn’t make sense.
- Brainstorm with the attorney and his or her client to keep them engaged. Allowing them to just say no or offering criticism will not assist in getting it resolved.
- If you think the offer will not fly in the other room, ask for a basis for their offer so you can offer an explanation if asked when delivering the offer.
- Do not allow yourself simply to be a conduit of negative information.
- Don’t reveal a confidence learned in caucus without permission. If you think you might want to use something later – ask if you can use it if the time becomes appropriate.
- Check in periodically with the other room if you are in one room for an extraordinary amount of time
- Remind parties periodically that mediation empowers them and that they are in control of the outcome.
- Explore financial considerations of going to trial. (Not just attorney fees and litigation costs but explore carrying costs- ie, what a person is paying each month— how long they will pay it before the likelihood of a court order).
- Suggest calls to experts such as accountants/HR department/bank.
- Help the parties see the positive aspects of where they have come each pass.
- Don’t report anything to the Court other than settlement or no settlement.
2.7(E) says that within 10 days a mediator shall submit to the court without comment and without recommendation a report of the mediation status- i.e., was it settled/didn’t settle/partially settled or rescheduled as still going. WITH THE CONSENT OF THE PARTIES the mediator’s report may also identify any pending motions or outstanding legal issues, discovery process, or other action by any party, which, if resolved or completed, would facilitate the possibility of settlement.
The road to resolving conflicts in family mediations can be bumpy. I hope these reminders from Jill Goldenberg Schuman help to keep you rolling more smoothly. For additional information the e-publication for “CME for Family Mediators” includes Jill Goldenberg Schuman’s training along with other outstanding instructions from our family law expert panel.
About our Law Tips faculty participants:
Jill Goldenberg Schuman, Cohen, Garelick & Glazier, Indianapolis, concentrates in the areas of family law and alternative dispute resolution. Ms. Goldenberg Schuman received her B.S. in business from Indiana University in 1990 and her J.D. from Boston University School of Law in 1993. She is certified by the Indiana Certifying Organization of the Indiana Bar Association as an Indiana Certified Family Law Specialist. She is also a registered domestic mediator. Jill is a lecturer in various family law and alternative dispute resolution topics for ICLEF.
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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