Benefits of a Failed Mediation – Part I

by Annette Burns on January 25, 2020

“I have not failed. I’ve just found 10,000 ways that won’t work.” – Thomas A. Edison

That quote sums up my experience with mediation.    I’ve never found it helpful to brag that I settle “98%” (or whatever percent) of the mediations I handle.  For one thing, I don’t, and for another, I think talking about percentages of “success” ignores the value of mediations for the parties and focuses only on the supposed success of the mediator.    I care whether the parties get something done, or at least make progress.   A lack of progress is far more disappointing to me than the lack of a full and final agreement that I can add to a tally.

Regardless of the success or failure of an individual mediation, the great majority of family law cases don’t go to trial.  They are settled, sometimes by skilled negotiations and high-level back and forth proposals. More often, they’re settled in messy, piecemeal ways, and settle in part because both parties are exhausted and discouraged by the huge amounts of money and energy expended on the litigation. (Yes, waiting till everyone is worn out is a settlement strategy, but not one that should be used in mediation.)   

I’m a proponent of mediation in virtually every family law case.  You could probably come up with a scenario in which I’d acknowledge “You’re right; that case probably shouldn’t be mediated,” but that’s not my focus in this post.   

First, if my client objects based on lack of money, I will look for either free mediation through the court (currently only available in pre-decree cases in Maricopa County) or the most low-cost option I can find.   Numerous mediators in my locale, including many retired judges, offer flat-fee mediations for a set number of hours for a very reasonable fee.  

Second, I assure the client that we won’t be wasting our time at mediation.  All the hours during the mediation will be used by us to evaluate the case, update disclosure, review disclosure from the other party, prepare my client as a witness, and even prepare the Pretrial Statement, including the definition of issues and clarification of my client’s positions.   A client and attorney shouldn’t be sitting around chatting the day away, doing nothing while waiting for the mediator to finish in the other room.    While I often tell my client to bring a book or something to do during “down time”, ideally there isn’t much down time.

Even a mediation which is obviously failing is useful for at least the following reasons.

  1. For every issue which doesn’t seem to be going anywhere at mediation, spend your time going over each and every element of your client’s case and position on that issue.   If valuation of property is at issue, go over every document, appraisal, witness, and item of testimony that will support your client’s position, or disprove it.     Go through this with the client, and with the mediator if possible, to test the evidence and evaluate your chance of success at court.

Make sure the client understands the burden of proof and that the opposing party will have elements of contrary evidence.   Try to get a reasonable weighing of the evidence and the potential outcomes. No client should leave mediation thinking his position is a slam-dunk for trial — everything should be challenged.  If the issue is parenting time, make sure the client hears all relevant case law that the judge will be considering when determining parenting time.  Too many clients read the parenting time statute — in Arizona, 25-403.01 — and make a snap decision that what they’re asking for is “in the child’s best interest” and don’t make much of a further analysis on that issue.     Clients need to read and understand cases like Barron v. Barron and Woyton v. Ward and see how the Arizona Court of Appeals is interpreting Arizona’s public policy presumption of “frequent, meaningful, substantial, and continuing” time with the child; that it’s being interpreted as being a presumption of equal parenting time, and the burden of proving something different is on the person who doesn’t want equal parenting time.  These things have to be strongly considered at mediation.   I unfortunately find that many clients come in to mediation not knowing the strong presumption in favor of equal parenting time in Arizona and not realizing just how much evidence they need to disprove that presumption.

2. Get the mediator’s opinion.    I met a mediator once, someone I respect very much, who told me he wouldn’t give his opinion of the case to either party at mediation.  He went so far as to say that if he knew there was a case on point that affected the case, he wouldn’t reveal it to the parties.  I don’t agree with that.  I think the parties are paying me for opinions if I’m asked for it (more on that below) as well as input on the strengths, weaknesses, and realistic value of the case. The mediator assumes the role of a pretend judge and should take all the evidence into consideration.  The mediator can give input on potential outcomes if the matter goes to trial.   For this reason, most people choose a trained mediator who has specific experience in family law.   Mediators can often give specific information about how a particular trial judge has handled procedural matters or even specific issues, and will provide invaluable insight as to how the claims, defenses, and positions will look to a neutral third party.

I mentioned that I’ll give input as a mediator if I’m asked for it.  Some people don’t ask.  I of course sometimes come into information during the mediation which is confidential and must remain confidential.  If either party tells me to keep information confidential, I must do that — no exceptions.     And frankly, some parties don’t care about my opinion on an issue, which is fair.  I’m not the trial judge, and if a party is confident enough that a judge is going to do something that I disagree with, sometimes they have to go test their theory at trial.

I’ll continue with a second post with additional reasons that even an unsuccessful family mediation has benefits to the parties and attorneys.

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