10 Things Lawyers Can Do to Increase Their Divorce Clients' Chances of Success at Mediation

Mediation is a highly effective process for settling divorce cases, but successful mediations don't just happen by chance.  There are a number of factors that can impact the outcome.  Here are a few tips that should increase the likelihood of success in mediation for divorce lawyers and their clients:

1. Be prepared. Know the facts. Know the law. Know where your client wants to go, and contemplate possible routes to get him or her there. Don’t just show up: show up READY, and make sure the other side does to. Nothing hinders negotiation and resolution more effectively than having someone at the table who didn't his homework.
2. Set aside enough time to achieve the desired result. Mediation takes time. Sometimes, real progress isn’t made until several hours have passed. Don’t schedule other appointments during the day that you’re attending mediation. Your client deserves your focus and commitment to the process.
3. Schedule multiple mediation sessions if necessary. Mediation is a process, not an event. Have a second session scheduled for a week or two after the first session just in case you don’t wrap it all up the first time. That way, everyone recognizes the possibility that it can’t all get done in a day and insures against delay in getting back together. If you don’t need the follow up session, then you can always cancel it.
4. Educate the mediator in advance. Counsel should provide the mediator with a summary of the issues involved, salient facts and parties’ positions. This will save time (and expense) at the mediation session itself. Consider having the mediator meet or speak with the parties in advance as well. An “ice breaker” can help ease the clients’ anxieties about the process. Make sure everyone agrees on what will be done in advance, and stipulate to having it all considered part of the confidential mediation process.
5. Mentally prepare your client for resolution. Many times, the parties are not emotionally or psychologically prepared for the prospect of resolving their case. They freeze just as they are about to “seal the deal.” Make sure that your client understands that a final resolution of the case could be at hand. Are both parties ready for their disputes to come to an end? Are they ready to compromise and achieve a resolution that may not include everything on their “wish lists”?
6. Mentally prepare yourself for resolution. You can’t be effective for your client if you’re not mentally ready for settlement either. Understand your role in the process. Remember that you are dealing with adults who were making decisions for themselves and their family long before they met you. That’s a point too many lawyers seem to forget. Your client may be in foreign territory as far as divorce litigation and mediation goes, so your job is to help your client navigate the process, not to make the decisions for them. Be prepared to watch your client settle for less than what you believe he or she “deserves.” If you’ve done your job, you can’t be regretful if the parties decide to put their disagreements behind them, even when you don’t like the deal.
7. Manage expectations. Don’t just develop your client’s ‘wish list’: determine what he or she would be happy with and what he or she could live with. That gives you and your client greater flexibility in making and considering settlement proposals.  Don't leave your first discussion with your client about possible "fallback" positions until you're sitting at mediation.  For more on this point, check out my recent post on "Another Big Fact Divorce Lie: 'Must Haves'.    
8. Select the right mediator. The mediator should be a good fit for the parties and professionals involved. If you’re dealing with sophisticated financial issues, hire a mediator who is strong on finances. If settlement efforts have been thwarted by the parties’ emotions, a mediator with more of a therapeutic approach may be more effective. A retired senior judge can be very effective in mediations with older couples, who tend to appreciate having someone they perceive as a peer working with them.
9. Read and learn about the art of negotiation. We negotiate all day long, yet how effective are we as negotiators? Are we getting what we or are clients want or deserve? Or are we content to leave everything up to a judge? There is a whole field of study on effective negotiation. Read William Ury’s Getting Past No and Getting to Yes to give you a flavor what is truly an art form.
10. Become a Peaceful Warrior. Ten years ago, I realized that I enjoyed mediating cases better than trying them. I know how to try a case and enjoy the intellectual challenge of trial advocacy, but I recognized that the real talent in family law is in getting deals done outside the courtroom. It’s what families deserve, and it improves the lives of the professionals who serve them. If you are a fan of the process, there is no doubt that you will be more effective in mediation. If you’re not, it will show. And remember, just because your peaceful doesn’t mean you’re weak. 

John Mulhall is a family man. He is a husband, father, brother and son.  He also happens to be a lawyer who practices Marital and Family Law in Boca Raton, Florida, and a Florida Supreme Court Certified Family Mediator. His law firm, Mulhall Family Matters, P.A., was founded on the principle that every divorce can and should be peacefully resolved.