“An ounce of mediation is worth a pound of arbitration and a ton of litigation!” These words were written by Joseph Grynbaum, unsurprisingly, a mediator.

Mr. Grynbaum’s perspective arose following a long career as a professional licensed mechanical engineer, a field that led to substantial exposure to litigation, arbitration and mediation, where he now works. This topic isn’t about complex civil engineering but family law, where a mediated agreement can serve the interests of your client much better than litigation.

The judicial system, and specifically trials in the courtroom, adversarial as they are by nature, are appropriate forums to achieve resolution of allegations of crime, personal injury and other civil matters. It is the family law cases – specifically guardianships, dissolutions of marriage, paternity, child custody, visitation cases and other matters involving intimate partners or family members – that seem out of place in the traditional courtroom trial setting. Even though we have courtrooms that look and feel very different depending on the type of docket being conducted, not every type of case needs to be decided by a judge in a courtroom. Perhaps we have all been watching too many criminal court TV cases, but did it ever seem right to call one parent a “defendant” in a custody case?

The Oklahoma Legislature did support making a change in the party designation, but it was as recent as Nov. 1, 2002,[1] when the change became effective in divorce and annulment actions, and the parties formerly named “plaintiff” and “defendant” became “petitioner” and “respondent.” Perhaps a bit kinder in nomenclature, but one is still suing the other for custody, child support, property division and debt apportionment and vice versa. Even in a guardianship action, a parent may be suing their adult child seeking guardianship of a grandchild, alleging that it is necessary or convenient,[2] or an adult child may be suing their parent seeking guardianship, alleging that the parent is incapacitated or partially incapacitated.[3] There are significant, highly emotional issues in family law matters that need processes to de-escalate tension rather than subject the parties to the escalation that trials can bring about.

Mediation can be that de-escalation tool. This article will discuss whether mediation should be considered as an expected way to resolve family law matters rather than a step in the pathway toward trial.

WHEN SHOULD MEDIATION OCCUR?

Settlement of a case can only be accomplished when you are fully aware of your client’s goals in the resolution of the issues and you have an accurate picture of the facts and issues involved in the case. Therefore, discovery must be complete. When you know what a fair and equitable resolution of all the issues would be, you can evaluate the parameters of what might be the strengths and weaknesses of your client’s position. That enables you to form a settlement strategy: from the “optimum result” ranging to “a result my client can live with.” This sort of analysis can only come about when you know your case. When you have been efficient, issued discovery in a timely manner and have discovery responses, you are ready to schedule mediation.

HOW IS MEDIATION SCHEDULED?

Mediation can be scheduled by agreement of the parties directly with a mediator. Of course, that does require agreement of the parties, and when agreed, mediation can be scheduled as soon as discovery is completed. Absent agreement, a request can be made of the court to order mediation, but you may be in a county where it is common practice for the court to order mediation as a routine part of a scheduling order.

WHO SERVES AS MEDIATOR?

Parties are generally able to choose a mediator by agreement, or perhaps your court would make a selection from suggestions of counsel if you do not reach an agreement. The cost apportionment will be determined by the court. When the expense of a private mediator is cost prohibitive, the Oklahoma Supreme Court Early Settlement Mediation program is available. This program operates under the Oklahoma Dispute Mediation Act,[4] which affords confidentiality of proceedings and offers statewide (including virtual) coverage. Offices are located in Norman, Tahlequah, Ada, Stillwater, Bartlesville, Enid, Oklahoma City, Ardmore, McAlester, Lawton, Tulsa and El Reno.

WHY MEDIATION?

Mediation affords parties and their counsel the opportunity to hear each other in a way that doesn’t happen in the course of a case in any other way. Neither a deposition nor a trial actually affords parties time to sit and listen to each other in the way sitting in a conference room does, listening to the questions and answers between the opposing party and the mediator. The sharing of views allows for an opportunity not merely to compromise but to explore ways in which each party can gain a resolution that is satisfactory.

When only one party is represented by counsel, mediation is a particularly useful tool for the settlement of a case. When the opposing party is unrepresented, you have very limited opportunities to speak about the issues in the case. Assuming you have discovery accomplished or are otherwise sufficiently prepared to engage in settlement negotiations, having a neutral third-party mediator who is directing questions of both parties regarding their goals in settlement and itemizing their requests for settlement, you, as the attorney for the one party represented, do have the opportunity to engage in settlement negotiations, something that is not available in any other way.

The certainty of the result is a significant factor in favor of mediation over trial. There is always a great deal of uncertainty about the outcome of litigation of the issues. Testimony never sounds quite like you expect, or witnesses may not appear – or if they appear, they may not testify as expected. Your case may sound excellent on direct examination but not as clear-cut under cross-examination. All of that uncertainty is eliminated in mediation. The decision is solely in the hands of the parties, those persons who know the facts and nuances of the issues the very best. Through mediation, they maintain control of their lives and their futures, and though they may not have accomplished everything they would like, they did come away with something they can say, “I can live with this result.”

In child custody matters and guardianship cases, there will be ongoing matters of disagreement. It is an excellent idea for parties to learn how to solve problems among themselves rather than needing to have a judge enter orders on every dispute. This seems pretty basic, but as time goes on, other matters will arise that the parties may have disagreements about. You will be doing your client a great service by teaching them skills through mediation: communication, listening and problem-solving. Those skills will serve your client well and, even more, serve the best interests of their child or children.

COVER ALL THE BASES

Remember to be complete. For example, if parties want to have a holiday visitation schedule that they will agree to yearly, also propose a standard schedule that will control in the event the parties fail to agree on a schedule, and that will be the default schedule for visitation if an agreement is not reached. If there is a request to deviate from guidelines for child support, attach an accurate child support guideline schedule to show the parties’ incomes, the resulting calculation and the parties’ agreed deviation. If you are dividing a pension plan, prepare the appropriate documentation. The goal is to not be back in court, but in the event your client is back in court, have an order that does, in fact, cover all the bases. Would you be surprised that an agreed decree provided for the division of the equity in the marital residence, then three years later, the issue for mediation is how the equity is determined? Do you look at the value three years ago or today? When a decree is silent on essential terms, the issue is more complex than it was originally.

CONCLUSION

Is every case you take to mediation going to be settled? Probably not. I would imagine, though, that if you take the attitude that mediation is expected to result in a conclusion to the case, many, many of your cases will, in fact, settle. You will save your client time, money and angst. Then, for those that have not settled, almost always, you will have a significantly greater knowledge of both sides of the case, and the information you take with you will lead to further discussions, many of which are likely to lead to settlement. Remember, you can drive how efficiently your case moves forward. Families are in limbo while cases are pending, and you can bring peace to your client through the resolution of the issues. Abraham Lincoln discussed lawyers as peacemakers and described them as good men. Perhaps he lived at a time when he couldn’t envision that women would also be lawyers and good peacemakers. In any event, the topic he was discussing was compromise and the benefits of settlement. I hope you agree with him that there are, indeed, many benefits of bringing your skills as a lawyer and a peacemaker to family law conflicts through mediation.

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ABOUT THE AUTHOR

Judge Jequita H. Napoli is an active retired special judge in Cleveland County. She served as a board member and chair of the Oklahoma Board of Bar Examiners and the National Conference of Bar Examiners. Judge Napoli has spent six years each with the ABA Section of Legal Education Council and its Accreditation Committee.

 

 

 

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ENDNOTES

[1] 43 O.S. §102.

[2] 30 O.S. §30 O.S. 2-101.

[3] 30 O.S. §30 O.S. 3-115.

[4] 12 O.S. §1801 et seq.