Tips for Lawyers

J. Burton Hunter, III and Associates, PLLC
One West Main Street
Buckhannon, West Virginia 26201
Telephone: (304) 472-7477
Fax: (304) 472-0641

Tips for Lawyers Representing Their Clients in Domestic Mediation
(From one Mediator's Perspective)

• Thoroughly understand the mediation process. This means:
  
  
• Attend a Basic Mediation Seminar, the 40 hour seminar if possible, or at the very least, spend an hour or so with an experienced mediator discussing the process and read some on the internet.
  
  
• Be sure that you have done your job as an advocate. That is:
  
  • Make sure that you have had sufficient meetings with your client to take a complete history.
    
    
  • Make sure that you have educated your client on applicable law and factual issues.
    
    
  • Make sure your client's expectations are realistic.
    
    
  • Make sure that you client understands the mediation process, especially that the mediator is not a "judge".
    
    
  • Prepare your client for the fact that even when one party comes to the table with rigid demands, that mediation is in trouble.

• Explain that a successful compromise usually means that each party must give up certain things that he or she had not expected to.
  
  
• In most instances, have a comprehensive settlement proposal regarding parenting issues, equitable distribution, alimony, etc.
  
  
• There is a "school of thought" promoting non-attorney, domestic mediators, limitation of mediation to parenting issues, and attorneys not attending mediation.  This mediator did not attend that "school" and would be expelled if he did. This mediator suggests that the parties be represented by counsel whenever possible, that all counsel attend mediation, and that counsel come to mediation with constructive attitudes.
  
  
• Please prepare an orderly, and usually brief, opening statement setting out your case, status of contested issues, and your client's real grievances, even in situations where the mediator suggests that we leave such grievances "behind us".
  
  
• Insist at the information gathering stage, that your client be given an opportunity to elaborate on such grievances while always keeping in mind that once this venting and educational stage is over, the general rule against recrimination and looking back is a valid one.
  
  
• A good domestic mediator should have obtained the school schedule for all local counties. It is a good idea for individual counsel to have these calendars available. They will permit you to know holiday schedule, faculty senate dates, final exams, summer vacation, etc.
  
  
• Having calendars is helpful in both pre-mediation preparation where your client is providing you the caretaking information and during mediation when schedules are being worked out. Having several colors of felt-tipped highlighters can be helpful.
  
  
• Having an accurate valuation of all assets, appraisals, retirement printouts, or present value calculations is important. Specialty companies will prepare assessments for under $1000.
  
  
• Read a book on QDRO's such as The Attorneys Handbook on Qualified Domestic Relations Orders by John H. Williamson or attend a QDRO CLE Seminar.
  
  
• Always get sample language when available from the plan administrator, and be prepared to follow up by getting pre-approval of the QDRO as well as written confirmation from the Plan Administrator that the QDRO has been received and recognized as "Qualified". If you do not know the difference between a Defined Benefit Plan and a Defined Contribution Plan, look it up.
  
  
• Remember that a mediated agreement is not enforceable, even if it is signed and in writing, until the court approves it!

• This last item is a "golden opportunity" for parties who are represented by counsel who can prepare an agreement on the spot for the parties to read and sign. In highly emotional cases or even ones not apparent to you, there are other participants, parents, siblings, and "significant others" who will say, "you agreed to what"? when your client takes the agreement home. These are the same people who will talk your client out of the agreement he or she just agreed to.
  
  
• Whenever possible, have the potential "troublemaker" waiting nearby or available by telephone so that any developments can be discussed.
  
  
• When it is apparent that the "significant other" or parent is a major part of the problem, consider having both "significant others" or interested parties to be present. Usually, however, an initial meeting with only counsel and the parties is preferable.
  
  
• Always make pre-arrangements for the attendance of non parties. Otherwise, the other party is likely to feel threatened and refuse to meet in the presence of the non-party, and the mediation starts out with disagreement.
  
  
• Take great care if you are participating in a mediation with an attorney that you have found to be unreasonable in the past or someone that you dislike or someone that dislikes you. Your only hope in such a situation is if you can show restraint and not be baited into arguments interfering with the settlement. Your mediator will quickly spot such a person, and the best thing that you can do is let the mediator deal with that person. I have been present at mediation in which the wishes' of the parties, the mediator, and a reasonable counsel counterbalanced one difficult counsel, with a resultant settlement. Try not to be that difficult attorney.
  
  
• Come to the mediation with a clear vision of the needs and desires of the other party and the motivations of the other counsel and come up with solutions, even small ones, to the parties' differences.
  
  
• Hold your own client to a high standard.
  
  
• Do not be a mirror for your abusive client.
  
  
• Do not facilitate abusive behavior. Realize that you are fighting for the long term good of your client which means that even a monetary concession or a gracious change in position can result in that client's long term benefit.
  
  
• If child support is going to be significantly effectedby the number of overnight stays do not be afraid to say so, but try to keep the negotiations focused on the parties' true needs and desires. Sometimes it is money, but sometimes it is many more things.
  
  
• Do not be afraid to try a case, but do not walk away from mediation simply because of a lack of determination or dedication. Mediation can succeed even when a party has had his or her hand on the door knob to leave.
  
  
• Some mediations have no chance, and it is probably better to recognize that early on and save your client time and agony by agreeing to schedule the matter for trial.
  
  
• Make sure that you have met all discovery deadlines and make sure that your client has answered honestly and completely.

IN SUMMARY, proper preparation and participation in mediation can save the client and the court system immense time, effort, and money. Your assistance in helping them resolve their differences by agreement may change their and their children's' lives for many years.

Sincerely,

J. Burton Hunter, III