Mediation and Family Law

Mediation Panel to Family Law Attorneys: Let Us Do Our Job.

A panel composed of mediators advised attorneys who might really want to settle their family law case in mediation to be prepared and let the mediator do the job for which he or she has been trained.

A mediation panel, which was part of the 2013 Family Law Update presented by the Wake County Bar Association and included Cary Close of Cary Close Family Law, Michael F. Schilawski of Wake Family Law Group and D. Caldwell Barefoot of Barefoot Family Law, discussed several things that they believe a mediator is trained to provide.

First a mediator seeks to provide comfort to the client. Mediation allows clients a context in which to express themselves to an independent third-party. A good mediator spends time explaining that all communications are confidential and providing an opportunity for the client to have a voice. This process of making the client feel comfortable and building rapport may take some time, but it promotes a willingness to negotiate.

A second thing the mediator seeks to provide is perspective. The mediator seeks to gain an understanding of each client’s perceptionMediation of the situation. By listening to all parties involved the mediator gains an appreciation for both sides of the story and where each stands. Schilawski noted that mediators can provide valuable insights into the perceptions of opposing parties. Because of this unique perspective, the panel agreed that it is a mistake not to allow the mediator to share a client’s perception and priorities with the opposing party and vice versa.

A third element that the mediator provides is neutrality. That doesn’t mean that the mediator is void of empathy. An emphasis on neutrality can be perceived as lack of concern. A good mediator communicates empathy while seeking to understand both sides. Barefoot often tells a client that he is not on the client’s side or the opposing party’s side but is one the side of getting things done.

The panel agreed that there are things an attorney needs to do in order to prepare a client for mediation. The first is to explain the purpose of mediation and the role of the mediator. Ms. Close noted that she can’t count the number of times that clients have assumed her role was to settle the case and have asked her to be fair in the process. Attorneys need to prepare client to understand that this is not court.

A second area of preparation by the attorney should involve discussing possible outcomes and addressing client expectations. Schilawski stated that an attorney should be just as prepared for mediation as one would be for trial. For example, there’s no benefit to pushing for an opposing party to be removed from a deed if you already know that your client cannot qualify for financing. Ms. Close opined that the attorney and client should be prepared to give up some things. This can be facilitated by an honest discussion with the client of the intangible costs of not settling in mediation. Delays mean that the client continues in limbo. Barefoot noted that it can be worth a lot to a client to get it over with and move on with ife.

The panel stressed that the rules of professional conduct apply in the context of mediation. They stressed that an attorney has to accept the decisions made by fully informed client whether the attorney agrees or not. Mediation is not the place for an attorney’s ego.

The panel also discussed the advantages and disadvantages of having other third parties present at the mediation. Barefoot expressed his preference that third parties stay home in most situations, but he acknowledged that a parent or friend with the right perspective might be helpful in some cases.

Ms.Close observed that third parties are not limited to actual participants in the mediation. She noted that problems have arisen over the use of social media during mediation when clients communicate about progress or the lack thereof with others. She recalled one mediation in which a client expressed frustration that the other party was tweeting about his offers. Tweets and updates can derail settlements. Attorneys should be prepared to ask the client what are they texting and who are they communicating with if they are using social media during mediation.

Finally the panel stressed that attorneys should let mediators do their job. They are not merely a messenger service. Attorneys can exchange offers by mail observed Ms. Close. A mediator brings new eyes and ears to the situation. And, according to the panel, attorneys often squander a limited opportunity by not letting the mediator talk with clients and share their perspectives on the positions and priorities of each side.