Mediation of family law matters in Tulsa County (and perhaps other counties) is mandatory. While there are rare exceptions, the overwhelmingly-vast majority of cases in Tulsa will go through at least one mediation session before a trial judge ever hears evidence or is asked to decide any significant issue in the case. While exact figures are not available (to my knowledge), my experience is that a large number of cases are resolved in mediation, with most of those being resolved in the first mediation session. Mediation is an excellent tool that should be used in family law cases regardless of the county of practice.
Despite the success rate, it could be higher in my opinion. In addition, cases are sometimes being settled on less-than-favorable terms for one side or the other. Finally, the process often takes longer than it should (or requires more sessions than necessary). I believe that with a few changes being made, the chances of success in mediation could be improved.
I am going to briefly address the process of mediation (as I practice it). Then, I am going to discuss how to prepare for mediation, how to participate in mediation, how to finalize a successful mediation and how to use an “unsuccessful” mediation as a stepping stone to the ultimate resolution of your case.
THE PROCESS OF MEDIATION: Mediation consists of nothing more than litigants and/or their lawyers and a third-party engaging in a process through which they analyze risk and explore options for settlement and if successful, come to an agreement upon which their case settles. Different mediators conduct these sessions in a variety of different ways.
In a “traditional” mediation, the mediator, the parties and the lawyers meet first in a joint session for a preliminary fact-finding session, some preliminary paperwork and perhaps some preliminary exchanges of offers. Some mediators keep the parties and lawyers in this session for most, if not all, of the mediation. Other mediators have this initial session be brief and limited to housekeeping; a description of what we are there for, the signing of a mediation agreement (see attached Exhibit A for my form agreement) and then the separation of the parties. How long the parties remain in the same room is often determined by their demonstrated attitudes toward each other, the process, the mediator, the other lawyer, or life in general. In my practice, I let the lawyers and their clients decide if they want to be in the same room for any part of the mediation, and if so, how much they want to try to accomplish in the same room. If either of the parties (or sometimes their lawyers) prefers to stay separated for the entire session, I always accommodate that wish. Most lawyers are sufficiently familiar with the process that they have a well-defined idea of how much their client should be in the same room with the other party and they do not hesitate to let me know.
Parties sometimes want to bring family members or a new spouse to mediation. I know of some mediators who take the absolute position that no one else is welcome in mediation. My approach is different. I believe that if someone believes they need a support person in mediation, even one who turns out to be somewhat of an obstructionist, I would rather have them there than not there. I will keep those people out of joint sessions but allow them to join after we caucus.
FACILITATIVE VS. EVALUATIVE: While I will address this in more detail later, the general process of mediation is one through which information is gathered, questions are asked and answered, issues for mediation are identified, offers and counteroffers are formulated and extended, documents are exchanged, negotiations are conducted and when it works, an agreement is reached.
Much has been written and taught about different styles of mediation. For the most part, in mediations in family law matters, I try to act as a “facilitator” when I can and as an “evaluator” when I need to or am asked. If two parties can reach an agreement on their own while all the mediator does is facilitate the formulation of that agreement, the chances are significantly improved that their agreement will ultimately be finalized for them, and will work best for their family.
It is quite common for me to be asked “what I think” about a particular issue. I always consider this to be a request that I act in an “evaluative” role, which I am always happy to do.
CONFIDENTIALITY AND THE COURT: Some mediators take the position that what is said in a caucus can be repeated to the other side unless the party/lawyer specifically tells the mediator not to repeat it. I handle it differently. Everything is confidential unless I have permission to disclose it to the other side. My process consists of, at the outset, the collection of information from one side, typically with requests as to whether I can share the information I collect (which I try to ask for each particular meaningful fact) with the other side. What is said in mediation is not discoverable through discovery or in court. Mediators cannot be subpoenaed.
DIFFERENT STROKES FOR DIFFERENT MEDIATOR FOLKS: There are mediators who seem to do it the same way every time. When you use one of them as a mediator, you will know what to anticipate. That is often a good thing, and may be perfect for your particular case. In my opinion, however, each mediation session needs to be a reflection, to the extent possible, of the case you find yourself mediating. How the sessions are set up, transpire and conclude is different for each case. Lawyers and mediators need to be prepared for that reality and be willing to explore whatever needs to happen to maximize the chances of success.
PREPARING FOR MEDIATION
PREPARING THE PAPERWORK: At the risk of stating the obvious, family law cases are resolved through negotiated settlements outside of a formal process, in mediation or through trial. In Tulsa County, the huge majority of them seem to be resolved in mediation as opposed to the other alternatives. With this as a backdrop, and with the knowledge that most cases settle in mediation, it is hard to understand why so little work is sometimes put into preparing for mediation. With its success rate, one would assume that lawyers would devote more time to preparing for it than they seem to do.
Abraham Lincoln said, “If I had eight hours to chop down a tree, I’d spend six sharpening my axe.”
I know this will sound absurd, but it really is not an uncommon occurrence for lawyers and their clients to come to mediation and not be able to articulate to me in an initial session whether child support, alimony, property division, debt division, etc. are issues. Then, once they focus on what the issues really are (and they almost always get around to figuring out the issues), it is not uncommon for them to lack the fundamental information in their file for the issue to be addressed. In child support cases, they will not have meaningful and current income information. In alimony cases, inexplicably, they will not have any idea of (or be able to show) their client’s monthly need or the other side’s ability to pay. In document-intensive cases where discovery has been outstanding for some time, they will show up at mediation with a stack of many documents they ask me to copy to give to the other side, and then they expect the other side to be willing to negotiate a settlement since they have “answered discovery”, despite the fact the other side has had no time to review it. I have had cases (more times than I can remember) where people seem to be passionate about the division of significant amounts of personal property, but do not have any lists to provide to the other side of a proposed division. In cases where they plan to negotiate the division of retirement assets that have some complexity (because of marital vs. separate components, for example), they will not have obtained the most fundamental documentation of what they are attempting to divide.
I am not suggesting that exhibits need to be in “trial-ready” form, or that every witness needs to have been deposed or even that the most current and up to date information be readily available. I am also not suggesting that an uncompleted mediation session cannot be helpful if the parties use it as a first step for them to go forth, collect more information and then come back for a second session or complete their successful negotiations outside of mediation. What I am suggesting, however, is that if more lawyers and parties treated mediation as a place where they have a real and meaningful chance to get their case finally and completely resolved, and come to it fully armed with the information they need to make that happen, more mediations will result in a beneficial settlement of the case at that time.
Mediation statements are helpful. My engagement letter says they are not required. Mediation statements in advance of mediation are becoming the exception rather than the rule. As a mediator I am not particularly assisted by a long written “closing argument”, but it is often helpful if I am provided with pertinent lists of assets and liabilities, living expenses, information about values, significant pleadings, a general description of what the lawyer perceives the sticking points to be, etc. Most of these are provided to me “confidentially” but I often get agreements at the outset of a mediation involving property, for example, to use the spreadsheet one or the other side prepared as the template for discussions about property division. It is also helpful in cases where written settlement offers have been extended and countered to receive those documents for review.
PREPARING THE CLIENT: Clients need to be prepared for mediation. In addition to simply describing the process to them so they are not surprised by anything, lawyers should devote some time talking to them about both expectations and negotiations.
It is not uncommon for clients to approach mediation, at least in the Tulsa County court system where they are mandated, in a pessimistic fashion. I have repeatedly heard that the case is not going to be settled, that the other side has no interest in settling, that this is a waste of time, etc. While they are sometimes suspect of me when I tell them, I try to tell my more pessimistic clients that I have seen many cases where everyone thought mediation was a colossal waste of time and the case settled.
I explain to my clients that their belief that they will get a better result in trial than they get in a good mediation is usually a poorly-conceived notion. I am surprised by the number of times clients (and litigants) act surprised when you explain to them that there are rarely “winners” and “losers” in family law cases. Oftentimes clients are so convinced of the righteousness of their side of the case they have trouble conceiving of the possibility of anything other than absolute victory. They usually should be dissuaded of this notion.
I always tell my client that even though the mediator is bound by rules of confidentiality, they should never tell a mediator what they are ultimately going to be willing to agree to on any particular issue, at least not at the outset of mediation. In the first place, if the mediation works like it is supposed to, they may ultimately be convinced their “bottom line” isn’t. Secondly, mediators are people too; my experience has been that if you tell them you want the other side to pay you $100,000.00, but that you’ll actually settle for $25,000.00, the case will settle somewhere in the neighborhood of $25,000.00. I want my mediators to have to work to get to that number because for all I know the other side might be willing to pay my client $50,000.00 and I don’t want the mediator to get complacent with the other side.
I explain to the client that while the mediator has no stake in the outcome, and will act like he or she is my client’s friend, he or she likewise has a human interest in trying to get the case settled. Successful settlement of difficult cases results in more mediation work in the future. Mediators are like the rest of us; they like to be successful in what they do.
I also tell my client that we have certain obligations when we are interacting with the mediator. We want the mediator having to tell the other side that settling with us is going to be difficult, but we don’t want to come across as being so intransigent that the mediation is a waste of time (unless we have actually reached that point). Likewise, we want to be in a position to give the mediator the information he needs to convince the other side of the validity of our position on each issue. (See the section above about coming to mediation prepared). For example, he or she needs to able to go to the other side with our average monthly living expenses and our net income information and the other side’s income and expense information and be able to tell them why they are going to lose the alimony argument and why they need to agree to pay more alimony than they want to.
A good mediator will never tell one side that the other lawyer/party is “more prepared” than they are, but he or she will let the prepared side’s documents do the talking instead.
As a mediator, I often explain to the litigants what we are doing; we are developing an understanding of what the evidence would be if the case was presented to a judge, we are analyzing the risk associated with that evidence (what the judge might do if he or she hears that evidence) and we are attempting to reach an agreement with which the litigant can live after having examined how a court-mandated result might be worse than the one being developed in mediation. I also tell my clients this in preparation for mediation. I find it useful to have this discussion in mediation with the litigants. Sometimes they think I am like a judge, or they perceive that I am trying to push them into something or make them agree to something, when in fact I am simply helping them perceive the possible downside of going forward. I believe that when they understand what is happening in mediation on this level, it can help them appreciate the process and understand why attempting to resolve the case is a good idea.
PARTICIPATION IN MEDIATION
1. THE GROUND RULES: It is important to understand the rules about confidentiality. Some mediators say everything is available to be repeated to the other side unless you tell them not to. My rule is the opposite. You need to know how your mediator is handling this important issue.
2. ATTITUDE: As I mentioned before, mediation is no different than other negotiation. If your client is firm on a particular issue, make sure he and the mediator realize the extent of his firmness. Firm positions sometimes result in successful conclusions and they sometimes result in failed mediation sessions. It is important that everyone understands the possible result of the position they are taking. If a party or client takes a position from which they say they will not budge, the mediator and lawyer need to make sure they realize that the position may result in the mediation coming to an end.
Hostility toward the mediator, the other party or the other lawyer does not help cases settle.
Clients often need to vent to the mediator. As a lawyer, in my opinion, you should let the mediator determine the level of venting to be allowed. I have mediated a number of cases where my perception was that a litigant needed to rant for awhile about the other side, but the lawyer kept trying to cut them off. I have heard it said that cases will not settle over unexpressed emotion. I suggest you let the mediator control your client’s expressions of emotion.
Declining to produce relevant information in mediation will often have the effect of keeping a settlement from happening. I certainly understand lawyers sometimes wanting to save certain information for court, but one should at least consider the possibility that producing the information in mediation may help get the case resolved.
Don’t leave mad. Even if mediation fails, I believe we owe it to our clients to at least suggest to them that mediation is sometimes an important first step in reaching a resolution of a case. I do not know the statistics, but I do know that I am frequently approached by lawyers who tell me that the case I mediated (unsuccessfully) for them settled a few weeks later. I think we often underestimate the positive effect the process of mediation can have on litigants and their view of their case and its settlement posture.
3. WHAT ARE YOU TRYING TO ACCOMPLISH? In most mediations, lawyers and clients are working to try to resolve their case. Other times, I suspect, they are there to attempt to conduct some informal discovery. In either event, you should not miss the opportunity in any mediation to learn what you can learn about the position being taken by the other side. Even when a mediator is carefully protecting the confidentiality of his or her conversations with the other side of the case, offers and counteroffers will demonstrate clearly how the other side sees the case and the type of information they plan to present to the court if the case does not settle. Pay attention to this information for your future use.
4. OPERATE IN GOOD FAITH: Assuming you really are interested in trying to get your client’s case resolved, you should look for opportunities to work with the mediator in encouraging your client to settle. When the mediator is in the other room is often a good opportunity to discuss with your client the issues and problems the mediator has raised, is obviously dealing with from the other side, etc. I often think much of the work in mediation occurs when I am not in the room, but I hope it is at least sometimes the result of questions I asked or comments I made when I was in the room.
5. PROBLEM CLIENTS: If you have a client who refuses to listen to the good advice you are giving to him or her, and you are hopeful the mediator will be able to “talk some sense” into them, it can be helpful to tell the mediator ahead of time.
Try to help your client get past the hatred, anger and distrust they have to reach agreements. It is not likely that a trial on the merits is going to do much to alleviate their hatred, anger or distrust either.
Sometimes difficult clients need to be reminded of the state of their account receivable and approximately what it might cost to go forward without a settlement in mediation.
6. NEGOTIATE: As a mediator, I often try to help the litigant perceive how the other side of the case sees things. Even when they completely disagree with the other side’s view of the world, they will often acknowledge for me that they know that I am dealing with that perception (as misguided as they perceive it to be). As lawyers we can help our clients accept that reality as well. All worthwhile agreements have to satisfy all of the parties’ interests, at least on some level.
7. CONFIRM THE DETAILS OF THE OFFER: When I have multi-part offers and counteroffers going back and forth between litigants, I try to remember to repeat the entire offer and/or counteroffer each time I am about to leave a room to take it to the other side. When I have tried to shorten that process in an effort to be expedient, something invariably gets confused; a client will declare that they did not realize that they were still agreeing to pay the Visa bill as a part of “Offer Number 13” because it was not repeated for the thirteenth time that day that that was a part of the agreement, even though it was specifically stated in the previous twelve offers that they were going to pay the Visa bill.
Also, the mediator and the lawyer have an obligation to make absolutely sure the client understands the offer they are making or accepting. I have seen lawyers (and mediators) try to sidestep a difficult area hoping the client would just go along rather than having to deal with a difficult client about a particularly difficult issue. It is critically important that the client understand what is happening. I think mediators and lawyers sometimes fail to perceive how foreign some of our language can be to normal people, and we obviously have the obligation to make sure the client completely understands what we are saying.
FINALIZING THE DEAL
I am aware of jurisdictions where the parties can draft a mediation agreement, sign it, walk across the street to the courthouse with the lawyers and have the document signed by the judge, thus creating an enforceable court order. That option is not, however, available everywhere.
It is not uncommon for people to come to mediation with the ability to pay for a finite period of time, and no more. Likewise, it is not uncommon for everyone to be tired at the end of a mediation session, or for someone’s schedule to permit only a certain amount of time before they have to leave. Finally, most lawyers and their clients genuinely believe that at the end of a mediation session, they all “know” what the deal is to which they agreed, only to discover when the documents are prepared that they forgot something, misunderstood something, now disagree on something, etc. Unfortunately, it happens with some regularity.
In many cases, the lawyers are able to refer to their respective notes, talk amongst themselves, and get the paperwork finalized. On occasion, however, their notes are incomplete or they simply forgot to note something that becomes relevant and meaningful to one side or the other.
When it does not work, the problem usually could have been alleviated by the parties and counsel and the mediator taking the time to document the agreement.
I have conducted an informal survey of the judges in Tulsa County. Most of them take the position that as much as they would like to be able to, they lack the authority to enforce a mediated settlement agreement in a domestic case. See Dickason v. Dickason, 1980 OK 24 and Adams v. Adams, 2000 OK CIV APP 87. As I understand these cases, the parties lack the authority to enter into a binding agreement in mediation in family law cases, but can present the agreement to the Court for its approval. The Court, however, can approve or disapprove all or a part of the settlement agreement, or modify it, based upon the Court’s determination of justness and reasonableness. This, to me, sounds a lot like a trial.
I was recently told by a district court judge in a county other than Tulsa that he agreed he lacked the authority to enforce a settlement agreement, but that he also enjoyed the authority to assess attorney fees as he saw fit if a trial was required.
Finally, other authors have suggested that a mediation agreement should include language of a waiver by the parties of the law concerning the inadmissibility of settlement negotiations. I do not know if that would be binding but I have considered adding language to a form mediation agreement that it reflects the agreement of the parties, that the parties understand and agree that it is their intention that it be turned into a formal order of the court, etc. Again, I doubt that would be binding if a court was asked to enforce an agreement and could not properly determine that it was fair and equitable.
At a minimum, when the parties and lawyers agree that they want a written agreement to be prepared, I will normally draft an outline of an agreement and ask the parties and lawyers to sign it. Often the process of reading the agreement will cause one side to mention something that has been assumed all day, but left unsaid, that needs to be added. Other times it will cause the parties to balk on an issue. Usually, by the time the agreement is being written and signed by the parties it will reflect enough of their true agreement that it can be finalized into a court order.