Three Critical Preps for a Successful Family Mediation

By Kevyn Mattax

As Henry Ford once said, “Don’t find fault. Find a remedy.” To that end, mediation is slowly becoming a requirement in family law cases in Oklahoma state courts. Many family law judges are now making it mandatory before you can obtain a trial date for your client’s contested matter. Thus, family law practitioners should be proficient in mediation for the sake of their clients. This article addresses how practitioners can successfully prepare their case and their client for mediation.

I have mediated hundreds, if not thousands of domestic matters and just as attorneys have their own quirks and qualities, every mediator has his or her own unique style. Every case that goes to mediation has complex components — the parties, the attorneys, the issues and the history. How successful a family mediation can be obviously depends in large part on the preparedness of everyone involved, including the mediator. Surprisingly enough, many times I have experienced less-than-prepared attorneys on the day of mediation. Clearly, if the attorney is not prepared, he or she likely did not take the time to prepare the client or their mediator.

Basically, the preparation boils down to three key ingredients: 1) prep of the case, 2) prep of the client and 3) prep of the mediator.

Before even booking the time with the mediator, it would be best to have THE case fully prepped. First and foremost, this will help determine the length of mediation necessary for successful resolution. On the scheduled day of mediation, it might be tempting to just show up with the file, grab a cup of coffee, sit back and let the mediator “do her magic.” The better course of action is to have the matter fully prepped, organized and ready to present — just as if the lawyer were headed to pretrial. After all, the goal is for the client to leave mediation with a full resolution and the satisfaction of time (and money) well spent and the closure that comes with resolve. 

If the lawyer plans to seek joint custody on behalf of the client, draft an outline of the proposed joint custody plan. If the lawyer seeks support alimony for a party, he or she should bring their detailed proposed budget and the supporting documentation. If there are exhibits that would assist a mediator in discussing the case with the other party, the lawyer should prepare those and have enough copies for use during mediation. 

In an ideal situation, the lawyer might even already have the draft of a proposed decree of dissolution or order of modification, ready to edit based upon the outcome. It seems like common sense but some attorneys come to mediation with the file and their client and absolutely no previous work or preparation. 

A “rock star” attorney comes to mediation ready to hit the ground running. He or she may have their laptop with them with drafts of proposed orders, or, maybe they emailed them to the mediator in advance to make any edits at the end of the day if agreement is reached. Leaving mediation with a signed decree of dissolution or agreed order of modification is the sign of ultimate success for everyone involved. Judges love it when this happens as well.

The client needs to know what to expect the day of mediation and the attorney must invest the time in the case to discuss this prior to mediation. The client and lawyer have a trust relationship and the ever important rapport that develops between an attorney and his client. Without a properly prepared client, the mediator, who likely has no rapport with the client, starts the day swimming an upstream battle and having to deal with the understandable resistance that is present when dealing with heightened emotions and difficult issues. 

Mediation empowers the clients. They have the unique opportunity to decide for themselves how they want to resolve their conflict. They can even potentially avoid a trial (or a showdown if you prefer) with their former loved one. In mediation, they are the decision maker. Help your client to feel empowered. Prepare them!

Before you show up at mediation, at a minimum, your client should know:

  1. What is mediation?
  2. What mediation is not? 
  3. Why they are going to mediation in the first place.
  4. Were they court ordered to attend or did they volunteer?
  5. What are the issues/subjects to be addressed that day?
  6. What are the benefits of going to mediation?
  7. Where will the mediation be held?
  8. Are third parties allowed to attend?
  9. What is the mediator like?
  10. Will they be in the same room with their opponent or in a separate room?
  11. What are the facilities like?
  12. Should they bring food/refreshments or does the mediator provide them?
  13. How long should they plan on being at the mediator’s office?
  14. What does the mediation cost? 
  15. Who is paying for it?
  16. Does the mediator take cash? Credit cards? Checks?
  17. Are there any time constraints on the day scheduled for mediation?
  18. Do they have someone to pick up their children if the mediation goes into the evening hours?
  19. What compromises might they be willing to make?
  20. What is the most important bottom line for them?
The information that a party needs in order to feel comfortable and secure about mediation is important to them and critical to the success of the mediation. The lawyer could also direct the party to the website of the mediator to garner important basic information. Some mediators will even answer questions in advance so long as the attorneys agree it is acceptable. I have even allowed parties to come to my office for an advance walk through so that they will not be anxious on the actual day of mediation. Think about how unnerved clients are when they have to go to the courthouse and deal with all of the unknowns. They feel the same way about going to the mediator’s office. Counsel should do what he or she can to make them feel confident and comfortable about the process in advance for a far better chance of reaching resolution for them. 

Counsel should provide the mediator with the most basic information: the style of the case, the assigned judge, the pretrial and trial dates, names of all of the attorneys who will attend, the full names of the parties and their children (if applicable), whether or not third parties are planning on attending (my policy does not allow third parties without advance approval by everyone) and who is paying for the mediation costs. Also, will a guardian ad litem be attending or available by phone?

 Finally, the mediator should know all issues in advance and whether or not any settlement discussions have been had as well as any stipulations or if the parties are willing to enter into partial agreements if they cannot reach a universal settlement. 

On the actual day of mediation, the mediator will explain her role and the process to the parties. Counsel needs to tell the mediator in advance if they prefer to caucus all day or to keep the parties together in the same room. Sometimes it’s a blend of both. 

Additionally, prior to the mediation date, counsel should provide the mediator with a memorandum of the matter to be mediated and the client’s position. If there are important or complicated exhibits, I want those in advance. Most mediators will review the information in advance. Unfortunately, when an attorney shows up without having previously provided these basic items, the mediation begins with time-consuming gathering of information, which costs the client more money. Clients deserve to begin mediation with conflict resolution instead of preparation.

I have conducted hundreds of mediations and as a family law attorney have attended hundreds on behalf of my clients. My dream mediation looks like this — both attorneys have contacted me in advance and have provided me with all of the necessary information on behalf of their clients. They have directed their clients to look at my website and have answered all of their client’s questions in advance. On the day of mediation, the attorneys and their clients show up on time, alert, prepared and ready to go. They have their file, their laptops (not required at all, but nice) and they log into my free Wi-Fi. We work with their spreadsheets (if we are doing property division, etc.), their plan for joint custody or budgets for support alimony and they have proposals to make.

They and their clients know their bottom line and priorities and the client has been prepared to negotiate and to make necessary compromises and concessions if need be in order to get what they want. At the end of the day, everyone leaves with a signed court order or mediated agreement and their clients begin to move past the conflict that brought them to my office to begin with. The lawyer is then able to close the file soon and move on to another matter, knowing that their client has the closure and satisfaction of an outcome they were intimately involved with every step of the way.

Kevyn Gray Mattax is an attorney and certified mediator who helps people resolve conflicts in ongoing domestic cases. She now spends the majority of her time in mediation, whether as the mediator or as counsel for a party in a family matter. She has attended world class training in all aspects of mediation.

Originally published in the Oklahoma Bar Journal-- Oct. 17, 2015-- Vol. 86, No. 27

Webcast encores are available for OBA/CLE seminars. View the catalog and sign up today.