Attorneys represent families in a variety of cases including divorce, child custody, child support, visitation and domestic violence cases. In most of these situations, it is in the best interests of all parties involved to pursue and participate in mediation. In fact, most Courts require mediation prior to final hearing. Mediation provides a less expensive and less adversarial option than litigation. When the spouses have children together or must otherwise maintain a cordial relationship, it is important that they align their interests and learn how to deal with each other in a productive manner. It is important that the parties at the mediation negotiate in a manner that is in the best interest of the children. I require it, and so do the Courts. Some stumbling blocks that parties may encounter during mediation include:
Lack of Preparation
Parties may blindly enter the mediation process with no idea of what to expect or knowledge of what is expected of them. Family law attorneys can help explain the process of mediation to their clients. Additionally, attorneys can assist by preparing the case through proper research and documentation.
High Emotions
When dealing with children, property and money, it is common for people to become highly emotional. The parties may need to vent their frustration with what they perceive as deceptive or unfair behavior by the other party. Attorneys can be particularly helpful at the beginning of mediation by explaining their client’s side in a matter-of-fact manner. Additionally, it can be more effective for parties to vent during a private session so that the parties do not begin with such bad blood. This way, they can express their feelings and then transition into moving onto the issues at hand. On the other hand, a general session can allow both parties to vent their hurt feelings and frustrations to their spouses, especially if they never had the opportunity to do so prior to their separation.
Focus on Past Misdeeds
Another hurdle that the parties must overcome is the desire to focus on each other’s past misdeeds. A skilled mediator can often effectively handle this issue by having a comprehensive general session. He or she explains the mediator’s role to serve as a neutral facilitator of communication. He or she states that the purpose of mediation is to help resolve the issues that are currently plaguing the parties. The mediator also sets ground rules at this point, such as refraining from talking disrespectfully to one another, cursing, or otherwise disrupting the process through inappropriate behavior. Even if the parties have had a poor relationship in recent history, the mediator strives to get the parties to consider the future.
Poor Negotiation
Many people involved in mediation are not trained negotiators. When going through mediation, parties should avoid behaviors that are adverse to assisting their interests. For example, making outlandish demands will only create more bad blood and make that participant appear less credible. The parties should negotiate the case as a business deal rather than negotiating on emotions. Attorneys can assist their clients with this issue by discussing beforehand the negotiation style that the attorney uses. It should be well established when the client will talk and when the attorney will talk. A good rule of thumb is for the attorney to ask to talk to his or her client privately after each potential settlement offer so that the client can receive candid advice about the repercussions of such agreements.
LAW OFFICE OF JOHN W. KELLY, JR.
