Efficient Resolution of Family Law Disputes 

by Tom Noble

Attorney-CFP-Mediator

The family law system of jurisprudence is too slow and too expensive. For that reason, in the summer of 1997, I gave a talk to the Dallas Bar Association ADR Section on this topic with Judge Craig Fowler, who is now presiding over the 255th District Court of Dallas County, Texas. The purpose is simple and obvious - to describe the most efficient method of resolving family disputes, using mediation. I wrote this "paper" (it's really more of an outline) for mediators, but spouses anticipating divorce may find it useful.

Intro - Genl Remarks

A mediator should live by 4 rules:

1. Prepare.
   
2. Be flexible.
   
3. Follow up.
   
4. Feel free to break rules 1,2, and 3.
   

General Plan

• Husband and wife agree on the selection of a mediator.
• The Mediator meets with the parties for a general orientation session before negotiations begin.
• Husband and wife consult with attorneys before, during, and after mediation.
• Attorneys do not attend mediation, especially in custody cases.
• Mediation agreement is conditioned upon approval of attorneys.

Steps for the Mediator

1. Meet with parties for free consultation.
2. Sign an agreement to provide mediation services.
3. Have parties acknowledge in writing that you are not acting as an attorney for either of them.
4. Schedule the first mediation session; confirm it by letter.
5. Ask each party to fill out a questionnaire and return it prior to the first session.
6. Discuss the case with each attorney by phone before the first session.
7. Outline the issues.
8. Prepare proposed agreement.
9. Research legal issues.
10. Convene mediation, and proceed intuitively.
11. If possible, narrow the dispute by proposing stipulations.
12. After each session, summarize the progress and the issues left to be resolved.
13. Consider conferring with the lawyers between sessions.
14. Upon reaching a final agreement, write it up, and make sure that it is conditioned upon approval of each party's attorney.

Issues For Each Mediator to Resolve

Each mediator will have to grapple with all or some of the following procedural issues before and during each mediation:

1. Video? (show one or not?)
2. Fee?
   • Hourly or Flat?
   • Customary or reduced fee?
3. Whether to recommend that each party consults counsel before beginning the negotiations?
   • If so, whether to refer them to particular attorneys?
4. What to put in your bag of tricks?
5. Do you put the parties in the same room? If so, for how long?
6. How long should a session be?
7. Agenda for subsequent sessions?
8. Can you ethically convey "legal information" to both parties?
   • If so, how?
9. Do you put yourself at risk by preparing a Mediation Agreement "for them"?
10. How involved will the lawyers be?

Conclusion

I have employed the techniques described in this paper to assist many people in getting through the divorce process for less. Most middle class people going through divorces can save a lot of money on litigation costs by employing a mediator early in the divorce process.

Those who seek to exclude attorneys from the mediation process are wrong. People need to know what their legal rights are. Their agreements will be sounder and more likely to last if their decisions are informed. If money is a concern, consider keeping the attorneys on the sidelines and letting the mediator