Briefs

By Tom Noble

6116 N. Central Expressway, Suite 922, LB 72

Dallas, Texas 75206

214-692-1888; fax: 692-8577

tnoble28@hotmail.com; www.tnoble.com

Sunday, November 18, 2007

Improving Family Law Mediation

Having spent the last 17 years or so as a family law mediator, I have acquired some opinions about how we might improve the process. Indulge me, please:

1. Knowing When to Mediate. Here's a simple rule: As soon as you know that you are in a dispute and you don't think you can resolve it without some help, mediate. If you go to mediation before the case is "ripe for settlement", which may mean that wounds are still fresh, and the lawyers are making a good fee (so why stop now?), you may have to come back after you "complete discovery". I am never sure what "complete discovery" means, but it usually costs something approximating a college degree at Yale and has something to do with legal malpractice. I understand that when you are holding the short end of the information stick you are reluctant to negotiate final terms. But, if there are problems with leveling the playing field, it's usually more efficient to go on to mediation, negotiate over how that will be accomplished, and come back, if need be, after the litigants have made full(er) disclosure.

2. Agreed Orders to Mediate. Eleventh hour cancellations are irritating. No mediators like them, and, more often than not, at least one of the parties is upset. But, because stuff happens even when people are not just playing games, we can't eliminate them. But, we could decrease the frequency of cancellations if we required a higher level of commitment. If lawyers would use agreed orders when scheduling mediation instead of doing what most do, scheduling by simply calling the mediator and making an appointment, the cancellation based upon gamesmanship or flimsy excuses would become a thing of the past.

3. Aside from cutting down the irritation quotient, there is another advantage to an agreed order for mediation. It allows the parties more freedom to negotiate before the mediation. Let's say, for example, that you schedule mediation, and you have no order, so either party can back out of his agreement to mediate whenever. Then, you send an aggressive settlement proposal to the other side. What happens? They (especially the uninitiated) get mad, pessimistic, and they cancel mediation. Maybe they do it because they don't understand that you are just a competitive negotiator and that first offers are usually extreme or maybe they cancel mediation to SHOW YOU SUCKER! Regardless, as an advocate, I am always reluctant to send a first offer until the other side has agreed to an order for mediation. I want my first offer to be aggressive, but I don't want the other side to use my tactics as an excuse to refuse to negotiate.[1]

4. Preparation by attorneys: My experience is that lawyers either do nothing to prepare the mediator or they inundate him (me), again, at the last minute, with three-ring binders. Just send a short letter. Don't give the mediator everything in your file. A mediator cannot digest it all. Given the frequency of cancellations, most mediators will not spend their weekends analyzing your inventories. Take pleadings, for example. Who cares? Chances are, if the case does not settle, warring parties will amend pleadings anyway. Keep it lean, but give the mediator a brief on the dispute.

5. Preparation by the mediator: On the other hand, if I send a letter to a mediator, I expect her to read it.

6. Mediators, not arbitrators: I am concerned that some mediators actually have provisions in the mediated settlement agreements that they prepare during a mediation stating that they will arbitrate all disputes after the mediation. It's one thing if the parties first prevail upon the mediator to serve this function, but for the mediator to be pro-active in naming himself is another matter. I can't quite put my finger on why it bothers me, but it does. But, let's set the self-dealing issue aside. There is something else that bothers me.

7. Except for those unusual cases where the mediator conducts the mediation with everyone in the same room throughout, mediators spend their time in ex parte meetings with the different parties in the litigation. Arbitrators are like trial judges; they are not supposed to have ex parte communications with parties. "OK," you say. "We'll waive it." My response is, "Waive what?" You don't know what the other party or his lawyer has been saying in the other room. How do you know what you are waiving? Waivers are supposed to be "knowing and intelligent". So? What all of that means is that an arbitration award by an arbitrator who was previously the mediator is vulnerable to attack and, in my humble opinion, arbitration by a mediator should be a procedural last resort.

[1] which can lead to the "negotiator-as-a-scapegoat problem", which, which, which I may someday tell you about.