By: Christa Banfield, Esq.
So you’ve decided that mediation is the right option for you, and determined which type to proceed with. Now, you need to take the steps necessary to make the most out of your time in mediation.
Depending on the type of mediation you are participating in, you may or may not get a say in who your mediator is. Assuming you are choosing private mediation, where should you start?
- Finding a mediator – How should you find a mediator? Word-of-mouth is optimal, do you have any friends, family, or colleagues who you are comfortable speaking with about this? If not, the internet is a good place to start- a mediator’s website can provide you with the basics and other review sites can provide you with prior clients’ opinions. If you have an attorney, they will have recommendations and opinions as to mediators that would be best for your specific situation.
- Experience – How long has the mediator been conducting mediations? While it’s not necessary that they have 20 years of experience, you want to know that this isn’t their first rodeo. Also, is their experience solely in mediation, or is the mediator a licensed attorney who has experience litigating as well? A mediator who has “been there, done that” in the family court system can provide valuable insight.
- Personality – You could be spending anywhere from 4 to 40 hours working with this person, and they are helping you during a very difficult time in your life. Don’t underestimate the value of finding someone whose personality is appropriate for the situation. Most private mediators should allow for a free 30-minute phone consultation, so you can get a feel for this. Just be aware that they will likely require both parties to be present so as to maintain their neutrality.
Have you decided to involve an attorney in this process? The three points above apply to the attorney as well. There are many attorneys who prefer to litigate cases in the courtroom. Obviously that attorney would not be a good fit if you prefer to mediate. Ask the attorney how they feel about mediation- do they seem optimistic or pessimistic about it in general? Is the attorney proactive about pursuing settlement discussions, or do they seem focused on creating conflict? Does the attorney tell you that you don’t need to provide relevant documentation? Red flag.
From my experience, here are some common differences in successful vs unsuccessful mediations:
Successful: Both parties are disclosing of all information.
Unsuccessful: Assuming, “what they don’t know won’t hurt them…” or “If I just keep ‘forgetting’ to bring that information, they’ll give up on it.”
Successful: Knowing your “must-haves” vs your “negotiables”,
and being willing to compromise on one to get the other.
Unsuccessful: Having a list of 30 must-haves, and 1 negotiable.
Successful: Having a realistic sense of fairness and equity.
Unsuccessful: Believing that “fair” = “the ex getting what’s coming to him/her”.
Successful: Listening to the advice of your attorney and/or mediator.
Unsuccessful: Insisting that your sister’s boss’s neighbor got xyz in their divorce in 1987- so shouldn’t you?
Successful: Keeping the big picture in mind.
Unsuccessful: Spending 8 hours on who gets to keep the Barry Manilow CDs.
Hopefully these past few blogs have helped to give you some guidance on whether or not mediation is right for you and, if so, how to have a successful mediation. If you would like one of our experienced Attorneys to help you through the process, please call OWENS & PERKINS at 480.630.2464 to schedule your free 30-minute consultation.