ADR is a mandatory component of nearly all contentious family law cases in Colorado, including post-decree matters. And this is for good reason — it works.
For clients and their attorneys, mediation can be an easy way to control the outcome of a case. It also costs significantly less than the alternative of taking a case to trial or before a judge. For people of high-net worth or status, it can allow for confidentiality and privacy in family law proceedings. Finally, ADR can provide a pretty immediate solution to time-sensitive family law issues with scheduling options being far more accessible than waiting months to get on the busy court docket. With all of these benefits, it is still interesting to note that many family law clients view ADR proceedings as a formality. In their minds, it is essentially a speedbump to pass over before having their day in court.
Through this article, we will provide information for family law attorneys to help their clients through the ADR process. We will shed light on how to choose a family law mediator for their unique case or unique client; when to engage in ADR and when to wait; and, how to leverage mediation to improve success in court.
Prior to selecting a mediator, it’s important that you evaluate your case and develop a game plan by using the following six strategies.
SET GOALS
What are your client’s and the other side’s goals? Does either party have unreasonable expectations? If so, it’s important that you understand what is fueling expectations and then educate and explain why those goals appear to be unreasonable. If that fails, a frank and open discussion with a mediator who has established credibility during mediation may provide assistance in realigning goals.
If the goals are objectively reasonable, are there procedural, legal or other barriers to achieving those goals? For example, often one party may be unable to say yes to less than what feels good, regardless of the advice or alternatives presented. Ask your client what he or she thinks is predominate in the mind of the other party. If there is a specific goal that that needs to be fulfilled — i.e., psychological, emotional or tangible — before a party is able consider reasonable resolutions, make sure you identify that conscious or often subconscious goal prior to mediation.
SELECTING THE MEDIATOR
Who is the right mediator for this case and these parties? One should always and continually think of the keys to winning and losing and define what “winning” and “losing” means to their client. Then, consider the personalities involved and the barriers to reaching a reasonable compromise. Only then can you match up the right mediator with the case and the parties involved.
There are many types of ADR professionals in family law so ask yourself if you need someone who takes a sensitive approach, who reassures people and gives them a sense of security and of being heard. Or do you need someone who is strong and opinionated, who will provide feedback and lead the parties or their lawyers down the path of likely outcomes, and not fuel unrealistic positions? Often, a retired judge or a well-seasoned trial attorney will be more likely to provide what is needed to move people off positions or provide a guidepost upon which to assess their case. In family law, the right mediator is the one who can most effectively relate to the parties and their counsel or one who can effectively evaluate the case and provide feedback.
MEDIATION TIMING
It’s important that you don’t head to mediation too early and prior to having the necessary information. Consider what information is necessary for you to fully analyze and assess the case. This can include an expert opinion, discovery or more data points. Without that information, will your client and the other side feel comfortable settling the case?
Often, lawyers need to perform due diligence before they have the courage to advise a settlement. Do you feel comfortable proceeding and making a commitment, as opposed to just talking and then walking? If the answer is no, then do all you can to educate your client, and the other side, so mediation has a chance of working and resulting in a fair and reasonable outcome.
GET CREATIVE
Every case and client are different, so every settlement is going to be different. Ask yourself what solutions are possible. Rather than wait for an offer or a mediator’s recommendations, take the initiative. To be successful in mediation is to come with plans A-C, if not more. Try to meet the goals of both sides and figure out what your opponent will need to say “yes.”
Think outside the box and turn possibilities into opportunities. If partial agreements can be reached, ask yourself if that better positions the remaining issues for trial. Consider arbitrating those final sticky issues that couldn’t be settled through mediation to reduce the expense and time consumed by further litigation in court. Also consider what can be learned in mediation and use it as an opportunity to conduct free discovery.
DO YOUR HOMEWORK
Ask yourself what the mediator needs to know — issues, personalities, outside forces, etc. Inform the mediator of the key issues and provide the key data. Share your opinion of the major barriers to settlement. You don’t have to give the mediator every option your client would consider up-front, but give the mediator a general roadmap to a reasonable and achievable outcome. You don’t want to waste time on petty issues, so be clear on where you need to go and steer the direction of the mediation back on course when appropriate.
THIRD PARTIES
Third parties can be an obstacle when it comes to reaching agreements but at times, they can help settle the case. Often an expert, such as a CPA, or a confidant of your client, such as a new spouse or parent who you know can help provide a reasoned voice or necessary confirmation of your advice or assessment. Remember that a settlement can feel like a lose/lose proposition to your client, so having someone other than yourself to assist them make a difficult decision can sometimes be helpful. If there is a complicated issue that needs to be resolved, having an expert who can educate the mediator and confer with the opposing party’s expert may be essential. Be cautious as a third party may end up being as a barrier to achieving goals, but always ask yourself if there are people who might increase the odds of a successful resolution and have them available by phone. Ultimately, a successful outcome in family law ADR will only occur when the parties, the lawyers and the mediator together accept the result, regardless of the motivations or interpretations of that result. Getting there requires more than just showing up and allowing the mediator to solve the problems presented. A properly prepared lawyer will greatly increase the odds of reaching a successful outcome for their client in ADR proceedings.
— Marc Kaplan and James Cordes are attorneys at Kaplan Law, a family law firm that serves families and individuals across Colorado.