Mediation Services provided by Brian R. Florence
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These are my views and are not necessarily shared by all other mediators. They are not intended to be exhaustive but should provide a brief summary of suggestions that have particular relevance to domestic cases.

  1. Mediate sooner rather than later (but not too soon).
  2. Too often, if people go too far into the litigation process before attempting mediation, they have either engaged in or been the victim of some unilateral act that polarizes their willingness to consider options.

    For mediation to have it's best chance of success, the parties should have sufficient information so as to be able to make informed decisions. That does not mean that you have to complete exhaustive discovery or have all appraisals or evaluations completed before attempting mediation.

    If you have some doubt about whether you have all the information that is relevant, insist on a disclosure provision that both parties have provided honest and all relevant information upon which the mediated agreement has been negotiated. To insure client safety for the future, it is also recommended that you include a provision that any omitted issue (debt or asset) can be later asserted by a request for modification.

  3. Know your mediator's style.
  4. Some mediator's are more facilitative, others more evaluative. Some permit venting, others do not. Some have better empathic abilities. What will work best for your clients? Does the mediator prefer attorneys presence or not? If you have questions, arrange a conference call and discuss process style (not substance) with the mediator in advance.

  5. Know what to say, how to say it and when not to talk.
  6. If you are going to be present during the mediation, do not use that as an opportunity to pontificate, advocate or alienate. Help outline the issues and if requested, how your client would like to see those issues resolved. Unless requested by the mediator, leave the "whys" out of your initial presentation. Those can be presented but the mediator might prefer the "whys" be provided in caucus (separate meetings).

    Help prepare your client to have direct interaction and discussion with the mediator. You are not going to be their "protector" after this case is completed and you should help prepare them for handling minor disputes in the future without having to run to court. You are not their emotional and decision making filter. The mediation process is not intended to be a strategic negotiating session. Try to suppress your inclination to do everything strategically.

  7. Be prepared and prepare your client.
  8. Know the issues, at least from your client's perspective. Prepare your client to listen to the other side's perspective and be open to viable settlement options as well as creatively suggesting other settlement options.

  9. Evaluate realistically.
  10. If you do not want to realistically evaluate settlement proposals in joint meetings, then ask for a caucus. Do not leave realistic evaluating to the court house steps. There is no better time than mediation to honestly evaluate the best and worst possible outcomes. Have you ever asked yourself, "Why do I see this so differently than the other lawyer?". "Could I possibly be the one who is wrong?" "Who pays the price if I have convinced my client to go to court because I think we can do better and we don't or, (perish the thought) we even do worse than what was available at mediation?"

  11. Be creative.
  12. To use a worn out expression, be willing to "think outside of the box". Don't judge every outcome by what you think might happen in court. Help your client find a solution that will work for her/him even if it is something that would never occur in court.

  • Staying Out of Court Using Mediation
  • Process Anchors
  • FAQs about Mediation
  • Lawyers Representing Clients in Mediation
  • Letter to Divorcing Parents
  • Creating a Parent Plan
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