3. Pick a mediator whose style works best for your client. If your client hasn’t listened to your sage advice and is insisting their case is stronger than you believe it is, pick a mediator who will engage in some evaluation of the case. If your client doesn’t operate well within highly structured situations, they will likely benefit from a more facilitative or transformative approach to mediation. 4. Pick a mediator who is actually a mediator. Don’t pick your buddy who was an amazing litigator and transitioned their practice to “mediation.” Mediation and litigation are very different skill sets. Each is an art unique to itself. Many litigators who transition to mediation, frankly, aren’t great at mediating. And the reverse is also true. Most mediators who find themselves in a situation requiring them to litigate aren’t great at it either. 5. Pick a mediator who will not trigger your client. Because I am pragmatic in my analysis, I can truthfully tell you I trigger older (than me) white dudes. Why? I surmise they (1) think I am younger and less experienced than I am (my curly hair tends to give off a more youthful impression than my actual age), (2) think they can roll over me and I don’t roll over, and (3) they are used to getting their way by misbehaving and I don’t tolerate it in my mediations (from anyone). It doesn’t matter why. What matters is when I know a party is likely to be triggered by me, I make sure I find them a mediator who won’t trigger them. They deserve a mediator who isn’t going to put them behind the ball at the beginning. Don’t Use Mediation as a Discovery Tool. Attorneys and mediators talk. You may get away with using mediation as a discovery tool a few times. Eventually, though, your secret won’t be secret. Your opposing counsel will either refuse mediation to block your attempt at mediation as a discovery tool or will use mediation in the exact same way, which is a waste of everyone’s time. I refused to work with some attorneys after it was clear they used mediation to learn information, not to settle. Mediation Should Never Be the First Time Your Client is Reality-Checked. If you are using your mediator to reality-check your client’s position for the first time, then you might as well have put cement shoes on a swimmer. This is the #1 reason why mediation fails. The best approach to preparing your client for mediation is to reality-check your client on multiple occasions prior to the mediation. This allows the clients who are slower processors to consider your reality-check, reducing their shock while in mediation and opening them to hearing ways to settle. Now you know what you didn’t know. Armed with these truths, you can best represent your clients in their family law mediations. I guess there was a key to the riddle after all. Family Law Mediation continued from p. 41 “The best approach to preparing your client for mediation is to reality-check your client on multiple occasions prior to the mediation. … [T]hey will be less shocked in mediation and open to hearing ways to settle.” 42 Trial Lawyer | Summer 2024
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