Oklahoma Bar Journal
Foundations for Family Law Mediation
By Grant Brown
Family law courts overwhelmingly order couples to mediation before setting a case for trial. As an alternative resolution measure, it’s a viable way for couples to resolve the issues in their case with less acrimony and for less money. That’s the “why” that lands couples in mediation. Success then largely rests in the mediator’s hands. To be a mediator requires the skill to create a conducive environment, as well as understand the settlement process. It’s as much about the “how” as the “what.”
As soon as the couple sets foot in the office, the environment created takes center stage. These are couples tasked with dissecting every aspect of their personal lives – from the cars to the house to the kids. Litigants should be made comfortable, and that includes assigning them separate rooms with their respective attorneys. In the presence of the opponent, most people won’t say what they want and think.1 I get farther faster with litigants in separate rooms versus staring at each other from across the table. Another tip: provide sustenance – they are in for a long day.
As an important factor, I only allow third parties in extremely rare circumstances. The third-party friends and family members offering their personal advice to the litigants is often the reason they are litigating and in my office in the first place. These parties were able to have and raise children together, acquire assets and debts together. They should be making the decisions related to these issues, not a third party typically biased against the other side.
Regarding formality, some of the conventional rules for attorneys should be eschewed. For example, there’s nothing wrong with ditching the traditional suit and tie in favor of casual clothing, maybe even shorts. I frequently mediate in shorts, and all the attorneys who mediate with me know this is a possibility. It’s the mediator’s task to create the dynamic between the parties that accommodates their individual needs and a path to a legal resolution. Suits scare most litigants. When I walk in with shorts on, it puts the parties at ease, and if they were at a nine on the stress level, it often immediately drops to a five. The more relaxed the litigant, the more rapport they develop with the mediator, and the likelihood of successful mediation increases exponentially.
I understand this is against every old-school rule that exists, but people want empathy, and too many mediators lack that quality. You have to listen to people and stop talking. If the mediator talks the entire time, it shows no empathy toward the party – and, often, the horrible situation. This does nothing to settle the case. Anything the mediator can do to relay a sense of commonality, of actually caring, leads to success, not failure.
THE MEDIATION STARTS NOW
Moving past setting the scene, I have a game plan I follow. I always start with a speech. The speech is not about me – I have learned over the years that no one cares about my accomplishments or accolades. I have always viewed a 20-minute introduction of how wonderful the mediator is and how successful they have been in their lives as a waste of the litigants’ time and money. My speech instead informs each party of the practical concerns and information they need to understand so we can effectively mediate. Everyone feels more at ease when they understand the process before diving into the deep end. This is also the mediator’s first chance to set the tone, get them smiling and convince them to trust this person offering advice about their assets and children.
Before moving into the substance of mediation, make sure both parties understand this is not a trial. The mediator is not the finder of the truth nor facts. The litigants need to realize this is their opportunity to settle their disputes on terms they can live with instead of taking their case into the unknown at the courthouse – they hold the final decisions in their hands. The next step is into the courtroom in front of their judge who tells them what will happen with their kids and their property. Help them understand they still control the outcome with mediation. There’s much more left to chance should they fail to agree and move to trial.
Once the initial framework is in place, the mediator transitions to identifying the issues. From the onset, listen. Identify what’s important to that person. What are the primary concerns? Money? Custody? Property? All the above? Find out what each party wants, whether it’s legally viable or not – addressing legalities comes later. Each party wants to present their case, and just having the chance to be heard by someone and “say my piece” goes a long way toward likely resolution.
What may be important to one side may be the least important issue in the other room. It’s important to understand this from the beginning, as these are the key negotiation points for settling the case. I generally do not leave the first room without an offer that covers all issues that need to be addressed in order to have a final agreement. That seems like a daunting task but consider this: going back and forth multiple times without a firm offer addressing all the issues wastes time and money. Get to the point, get there quickly and then get into the other room and figure out what the other side loves about the proposal and what they hate. The faster this is done, the better.
WORKING THROUGH THE PROCESS
After the concerns and desired outcomes are on the table, begin weaving through the expectations of reality – what each litigant is likely to “get.” It’s an opportunity to educate regarding the law applied. The term “counselor” factors heavily into the mediator’s role, both in the legal and practical sense of the word. A mediator cannot give legal advice, but this does not mean we cannot share practical advice. Practical advice is defined as an opinion, thought or idea on how to settle a case. A mediator with no opinion or ability to think outside the box is again a waste of time and money. There is no harm in sharing an opinion, so long as the litigants understand and have been instructed the mediator’s opinions should never be substituted for the legal advice of their attorney. Many times, the mediator reinforces what the party has already heard from the attorney, and a good attorney stays out of the way in the periphery for legal advice. In some of the best mediations, the attorneys don’t say anything!
I have experienced litigants begging me with their eyes to get their case settled by any means, all the while the respective attorney is strongly advocating to not settle or creating such terms that it becomes unreasonable to settle. This is dangerous and difficult to watch. A good mediator can usually tell within the first 30 minutes if the attorneys want the case settled or if today is just a good billing opportunity – they want to keep on the litigation train to trial. Derailing this train is a difficult part of mediation, but it’s not about the attorneys’ wants and wishes. Rather, it’s about the litigants and getting them to an agreement they can live with so they can stop litigating. I understand this may not be a popular thing to say, but it is true. It’s a problem I have witnessed too many times to not mention it in this article.
MEDIATION ADVERSITY AND HOW TO HANDLE IT
At some point, a mediator faces hostile or difficult litigants. What do you do with the challenging party? Enter the room understanding that one person may not want to be involved in this case in the first place. Or that years of abuse have taken their toll. Or that there’s money exchanging hands that this person resents handing over. Or suffering from a physical or mental illness predating any of this process. A successful mediator needs soft skills to diffuse the acrimony, to be the calm in the tempest. Again, listen. Empathy must take center stage at this point in the mediation. If you hit a sore subject with a litigant, recognize it quickly and pivot to other issues in order to build more confidence before circling back around.
All the above seems time consuming. It is, and it isn’t. The old adage “go slow to go fast” applies to the entire mediation process. With the foundation in place, the shift to legal work begins. Take each expressed issue to task. Match the wish to the legal reality. Take the time to explore every detail. For example, should the support alimony provision carry a commensurate life insurance policy? Exactly what time and at what gas station or police station should the parties exchange?2 The proverbial devil is in the details. Experienced mediators address the fine print before sending parties out the door to draft final documents. Again, don’t be afraid to share an opinion. Mix the practical with the logistical and the legalities. Most importantly, do not leave the room without an offer. The mediator’s role is to guide everyone to a resolution, and that cannot happen without concrete, detailed offers and provisions.
WRAPPING UP A MEDIATION – PUT IT IN WRITING
This entire process must repeat with the other party. Once the parties reach an agreement, put it in writing. I have seen the fallout from litigations with dysfunctional or incomplete mediation agreements. Take the time to be thorough! Handwritten, abbreviated gibberish on notebook paper leads to misunderstandings when the attorneys try drafting the final documents. It often renders the entire mediation useless and becomes a source of frustration to the parties who thought they agreed to one thing, but the chicken scratch indicates something else.
The mediation agreement will become the playbook for attorneys and parties when they put pen to paper. Have everyone review the thorough, typed mediation agreement, review it in full in each room and have all parties and counsel execute a signed copy before they leave. I have also seen catastrophes when the mediator types up the mediation agreement later (or delegates it to staff) and then circulates it with the attorneys. Almost every time, somebody disagrees with the wording, wants a change or realizes the mediator has missed some important aspect of the agreement. The parties then get to pay the attorneys to remedy what could have been avoided by taking the time at mediation to do it the right way.
WHAT DOES IT TAKE TO BE AN EFFECTIVE MEDIATOR?
Now we come to the realities of being a mediator. Put bluntly, not everyone is destined to be a mediator. While this may not be a popular statement, it’s the practical truth. How many times have we gone to a mediation and walked away thinking, “This mediator was a waste of time and money.” Mediating with someone ineffective is not only frustrating but can further harm and sabotage the case. These flawed mediations will often mislead the parties regarding the law and, even worse, the likely outcome of issues before the court.
I frequently hear attorneys say, “I’m thinking of getting into the mediation business.” I do not believe one “gets into the mediation business.” I believe that becoming a mediator finds you, based upon personality and other intangibles that most people in general (including attorneys) do not possess. It’s tough to put a finger on what makes a good mediator. Is it empathy? Is it a smiling face? Is it the knowledge and ability to tell people when they are being unrealistic? Maybe it’s the shorts! The exact answer is difficult to pinpoint. What makes a great quarterback? What makes a great baseball player? Most people say it is the intangibles those people possess, but very few can explain what those mean. Those qualities that a person has distinguish them from the majority of the people in their industry. I believe these soft skills are something you either have or you don’t.
The majority of those who mention they want to be a mediator draw an instant reaction of either two things: they could actually be a good mediator, or this will be a disaster if this person did a mediation. Of course, one would never say this out loud, and I encourage anyone who wants to try mediation to take some initial steps. I would encourage those that are considering throwing their hat into the mediation ring to find several good mentors, mediators they can shadow and observe how they operate. I do not believe there is such a thing as the perfect mediator. The best mediators utilize the positives they gain from watching other mediators and quickly develop a list of “things not to do” during the process. Learn what worked and what led to disaster. This information can be derived by mentoring, training and being observant while participating in mediations while representing your clients. I have pieced together a mental database of what works and what does not work through experience. This is something I believe training cannot teach a person. It’s analogous to graduating from law school and thinking you are ready to conduct a murder trial. Experience is everything.
THE NEW WAVE OF MEDIATION – WHERE ARE WE GOING FROM HERE?
The times we live in are drastically changing when it comes to practicing law and conducting mediations. With the global pandemic, litigants and attorneys are finding it more difficult to get resolutions through the court system. Mediation becomes the most cost-effective and quickest way to obtain a resolution, including temporary relief that is not otherwise available.
Attorneys who are accustomed to mediating their cases in person are struggling with the new concept of virtual mediations such as Zoom or BlueJeans. While conducting a mediation in person is certainly the most effective way to successfully settle a case, the concept of virtual mediations has taken off. Everyone, including myself, was skeptical about virtual mediations and their effectiveness. I am convinced now after conducting a large number of virtual mediations, this may be our new normal. My settlement rate has not changed from in-person mediations to virtual mediations. A mediation is either going to work or not, regardless of the setting. Those who previously refused to embrace the new technology and this new normal have either jumped on board quickly or will slowly fade away.
Attorneys from remote counties enjoy participating in virtual mediations because they save the hassle of driving to and from the mediator’s office located in other cities. This time saved from traveling translates to additional opportunities to work on their other cases, which results in more opportunities to earn money. The other added benefit is you can participate in the comfort of your own office, which translates to higher productivity while the mediator is in the “other virtual room.” With the onset of virtual mediations, I have found myself no longer in the minority of those who mediate in shorts.
It’s taken time, reflection and refining to grow my mediation practice. I became a mediator by accident. As it so happened, I was the only other attorney in a courtroom while two attorneys fought it out over their choice of mediator. The judge turned and said, “How about you use Grant?” As I was friends with both attorneys, I agreed even though I had never acted as a mediator in a case at that time. One mediation became a few, then became many, and now mediating comprises approximately 50% of my practice, averaging 20-25 mediations per month.
Insight into the “why” and “how to” of mediations is important for any practitioner regardless if they are conducting or participating in a mediation. Careful planning, attention to detail and being thorough tends to save clients money and save the attorneys additional time. In our industry, time is everything. Mediating your case is a smart way to litigate and is most likely to result in a reasonable outcome for your client, which results in their happiness. Isn’t the goal of every litigator to obtain a reasonable outcome for our clients and make them happy? I urge everyone who has not considered mediation as an alternative to imminent litigation to give it a try, and by all means, try it in shorts.
Kelsey S. Holder, an assistant professor of legal writing at the TU College of Law, helped edit the article.
ABOUT THE AUTHOR
Grant Brown is a partner with The Firm on Baltimore PLLC in Tulsa. He primarily focuses on family law and has successfully settled over 1,000 family law cases as a mediator. He received his J.D. from the TU College of Law.
- It is essential to be apprised of any protective orders in place. Advise legal staff and have a system in place to keep parties separate in this instance.
- As an aside, unless there are protective order concerns or convincing reasons, I strongly discourage gas station and police station exchanges. Nobody wants to wait in a convenience store parking lot and entertain children for chronically late people, nor do we want children associating the police station as where they go to see mommy or daddy.
Originally published in the Oklahoma Bar Journal -- OBJ 91 No. 9 (November 2020)