This article about the cost of divorce and the benefits of mediation for all was written by Sheree Hoffman for the March 2006 Edition of "Memphis Lawyer" Magazine...
Those of you who have brought your
clients to me for mediation know that this is something I always say. For
clients
who are embroiled in a legal battle, mediation IS the greatest idea since
sliced bread. The reasons for this are many, but the most important reasons are
that in mediation, they have a chance to:
- End a long and in most cases, cost prohibitive process;
- Bring to a close the trauma, fear, confusion and
speculation that typically comes with a legal conflict;
- Come to a "fair" agreement (which I define in my
mediations as "an agreement you can live with") without taking the risk
inherent in asking a third party, (i.e. the Judge/Chancellor/Jury), to make a
decision for you; and
- Especially in family law mediations, (but in any cases
where a future relationship is expected between the parties) encourage better
communication, harmony and healing
Attorneys
can make a huge difference in the success or failure of the mediation.
Because
the parties, typically do not know about or understand the mediation process it
is incumbent upon their attorneys to take the time to explain what mediation is
really about. Many times I have mediation clients who have not been told
anything about what is going to happen or even why they are there. Clients
sometime believe this is just another cog in the wheel of "justice" that they
have to put up with and pay for to get their issues resolved.
Clients,
for instance, have probably been told that mediation is faster and less costly
than litigation. Clients may hear these words but do they really understand
their full impact and meaning? Tell your clients about the reality of
litigation costs and increased attorney fees. Give them real numbers to
consider.
Clients
also need to know that there is so much more to mediation than just
"settlement" in terms of the positive benefits.
For
instance, in divorce cases, clients need to be advised by their counsel about
the importance of fostering better relationships and communication between the
parents when children are involved and that barring any unusual circumstance;
children love both parents and do not want to choose one parent over the other
or to even be faced with that possibility. They need to be advised that
numerous studies confirm children of divorce adjust in a healthy manner when
there is little or no fighting between the parents.
The
best legacy divorcing parents can leave their children is to be civil to each
other and to communicate respectfully with each other during their divorce. I
know this seems like a pipe dream, but I assure you it is not. My style of
mediation is to keep the parents and attorneys together in the same room and so
many times I have seen parents undergo a transformation during mediation when given
a non- adversarial, safe and confidential setting in which to communicate. Most
people do not want to fight and do not want to spend money unnecessarily that
they now need to support two households. I have received so many thank you
notes and letters from mediation clients who were in the fighting mode for
years and then because of the mediation process were finally able to work
through emotional barriers and frustrations, move on and begin the healing
process.
Does mediation have an emotional aspect to it? In divorce cases, yes absolutely and even other types of cases usually
have some emotional aspect to them. It is a mistake for a mediator to ever
discount that emotional element. In fact, I would venture to say that the
mediator who says things like, "this is just about the money now" is doomed to
fail. As with most other areas of law practice, mediators wear many hats
including discussion leader, effective listener, referee, and counselor.
Mediation gives disputing parties an opportunity to change things in a
constructive way.
When you have any mediation which involves relationships that are expected to
continue after the dispute is ended, this transformation matters and can occur.
I know of no other process in the legal field that can achieve it. As is often
said, litigation promotes antagonism; mediation promotes harmony between the
parties.
Very
importantly, the attorney should and the mediator must really, really stress to
the clients the risk of asking a third party to make decisions about their
money, property and their children. No attorney will or should ever guarantee their clients will prevail on any position and in fact, it is unethical to
do so. Yet, I have mediation clients who absolutely, positively are convinced
that they will "win" and the Judge will agree with them. Sometimes, sadly, it
is because an attorney has led them to believe that he/she knows what the Judge
will do. Tell your clients the truth, that all trial attorneys have won cases
they thought they were going to lose and lost cases they thought they were
going to win. This seems so obvious to legal practitioners, but I assure you it
is not obvious to your clients.
If
your client has not had any previous experience in the legal arena, they will
not know that:
- If they go to trial, the Judge may not hear everything
he/she wants the Judge to hear because of the Rules of Evidence
- Just because the Judge orders a person
to do something, doesn't mean it is going to happen (thus the high number of
contempt petitions filed)
Stress
to your clients that this is their opportunity to retain control over how their
case gets resolved. In divorce cases, it will be an especially important
opportunity to make their own decisions about how their money and property is
divided and to make their own decisions about what will happen to their
children. Ask them if under any other scenario, they would even consider
allowing some unknown, unrelated third party to make decisions about their
children. The answer will probably be "no". When you think about allowing
someone else to make those decisions it is, quite frankly, ludicrous.
The client should be told that they may not get the opportunity for mediation again.
Their mediation day could be their one shot moment to end the battle and bring
closure peacefully.
Get your clients to mediation as soon as possible and come with all necessary
information and documents to resolve the issues at hand. The sooner you get to
mediation, the less entrenched the parties are in their respective positions.
Too many attorneys still seem to treat meditation as if it is unimportant and
appear unprepared to even discuss the obvious issues. This just takes up more
time in the mediation and costs your clients more money.
When
in mediation, filter out the noise of litigation. Do not bash opposing counsel
to your client. Set the tone for success of your mediation by emphasizing that
you can and do communicate well with opposing counsel. Posturing by the
attorneys, is discouraged and should be non-existent or kept at a low level.
Personally, I believe posturing is extremely counterproductive to mediation and
belongs in the courtroom not in the mediation room. The client's attitudes
about negotiation and settlement and their own behavior during the mediation
will often mimic their lawyer's behavior. Validate the process of mediation
with them days or weeks before the mediation.
The attorneys should be familiar with the different styles of the mediators they
can choose from. There are three basic styles, facilitative, evaluative and
transformative. (More about those in a future article!) Know your client and
the issues; know the opposing counsel when choosing the type of mediator that
is best for your case. Most good mediators vacillate back and forth between
mediation styles as needed. But we all have specific personalities that may or
may not jive with your client. To get to a good settlement, both clients should
trust and connect with the mediator so personality style is also an important
consideration when you are choosing a mediator.
Although
the bulk of my mediations are in the arena of family law, mediations are
conducted every day in contract cases,
personal injury cases, misdemeanor criminal cases, medical treatment disputes
and employment cases just to mention a
few.
When
I first began my mediation practice in 1993, mediation was still viewed by the
majority of trial attorneys as a pie in the sky type of idealistic notion. In
addition, it was viewed with a degree of hostility in that many were afraid
that mediation would interfere with and reduce their caseload and their earning
capacity. Neither of these worries has transpired and consequently, mediation
is used in every type of legal dispute sometimes even before a lawsuit has been
filed.
Let
your clients know that mediation is a way to resolve issues with dignity,
respect, compassion and understanding. It is the greatest thing since sliced
bread!
Sheree
Lynn Hoffman
The
Hoffman Law and Mediation Office
7515
Corporate Centre Drive
Germantown,
TN38138
901-754-9994
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