Mediation is meant to resolve disputes between litigants and have proven to be a very successful means to accomplish that purpose. Timing, however, is the key. If held at just the right time then the mediation can produce huge savings in costs, time, and emotion. Scheduled at the wrong time and everyone goes home disappointed, depressed, and their wallets substantially thinner.
So, when is the time right to mediate? The right time is when both sides to the dispute have a realistic and clear goal of what they want to achieve – AND have enough information to make logically connected decisions about the issues before them. The blending of realistic goals and possessing the needed information depends on the case and the parties.
There are three (3) times that mediation can occur in a contested custody, divorce, or family law case. The first opportunity is before the litigation is ever filed. In post-divorce suits, you find many decrees where the parties have agreed to mediate before litigation gets started. Those clauses either call for mediation before a lawsuit can ever be filed, or before a temporary hearing or formal discovery is started. The second opportunity occurs early in the lawsuit, after all, the parties are served but before the full “process” of the case has been started. This may be a case where the issues are defined early and maybe the only issues are dividing property or working out an already semi-agreed parenting plan. The final mediation opportunity is before the case is set to go to trial. This mediation is normally court ordered and is the last chance to resolve differences before the Judge will decide it for them.
Historically, I have not been a fan of mediation in opportunities #1 and #2. Emotions are always still way too high for rational, and logic thought processing to prevail. Recently, I have changed my mind. Partly based on a string of successful early mediations before suit was ever filed, I have come to believe if the issues the client wants resolved can be clearly identified, then ordered in terms of most “important-got to have- can’t live without” to “I’d like to have it but no big deal if I don’t”, then the case has a great chance to get resolved before it starts. Two keys must be present. Both sides must have the level or emotion, conflict, and dislike for each other at a 20% or below level. Mediation will not work at any time if the emotion in the case and the animosity between the parties fills more than 50% of the room more than 75% of the time. Second, the parties have to believe they know all they need to know to “fix” the problems they are encountering. This element can often be provided by the Mediator or attorneys in voluntarily providing documentation on issues, and suggesting proven processes or tools to solve certain problems the clients are encountering in communication and co-parenting. The lawyers have to be experienced, collaborative, and adept at getting these issues well defined and prioritized before even setting the mediation. If done right, clients will save thousands of dollars, preserve emotions and relationships with their ex- spouses. Even if the case does not settle completely at these stages, the feedback you and your lawyer gain for a very low cost in terms of your opponent’s thinking, strategy, and evidence is invaluable.
Opportunity #3 is when clients expect mediation to occur. It is the last resort before the control leaves their hands into someone else’s. By the time this Opportunity Mediation #3 is reached, the parties have invested significant sums of money and emotion in the idea of winning. Settlement is usually achieved more from fear of losing than from trading positions based on goodwill and strengths. Due to the investment each client has made, Mediations held at this time are filled with emotion, and the client with a bigger war chest for trial has a significant advantage.
Working hard early on to identify issues and get information in pre-suit or early post-suit cases will return dividends and results beyond expectations. However, just “going through the emotions” will result in nothing if not increased animosity, expenses, and tension. As in everything in life, if you are prepared, knowledgeable, and have realistic goals then in the immortal words of Larry The Cable Guy – you can “Git-R-Done”.