This is Part II of two posts discussing why “failed” mediations don’t need to be failures, and what the attorney and client should be doing at mediation, even if all issues aren’t going to be settled.
3. Keep examining the other party’s disclosure. It’s possible that by the time of mediation, the attorney and client may not have spent the significant time necessary to go through the other party’s disclosure. If not, this is the time to look at things in detail. The client may not realize what these documents are or how important some are to his claims. The down time in mediation should be spent finding what’s most important to your case and determining what’s missing and how you’re going to get it.
4. Reevaluate the case. A failed mediation might tell you your case was not properly evaluated. Keep in mind that when a mediation isn’t successful, one party or the other is going to get less at trial than s/he would have gotten at mediation. We just don’t know yet which party that is. Either one or both parties are willing to take the risk — gamble — that going to trial will give them a better outcome that the offers discussed at mediation. Some parties are more risk-adverse than others, but a good mediator will discuss with both parties what risks they are taking by proceeding to trial and to stress that you just might be the party who’s going to lose.
5. Plan the trial. Family court trials are notoriously short. In Maricopa County, a trial for an entire divorce cases can easily be scheduled for three hours (one half-day), total. If someone wants a longer trial time, specific information about witnesses, evidence, and time of testimony needs to be given to the trial judge to prove more time is warranted. It’s possible that the parties can’t reach a resolution on every issue at mediation, but they may be able to resolve smaller or weaker claims. This preserves maximum trial time for the most important issues at trial. A good mediator, finding that the entire case is not going to settle, will shift focus to the issues that can be settled, including issues that will maximize use of trial time.
6. Get the discovery disputes out of the way. Every family law mediator has experienced the mediation which turns into a discovery proceeding. Parties have a tendency to show up at mediation and say “He never gave me that” or “Those records have never been produced/ requested,” followed by claims of “You already have that.” At some point, someone has to investigate and find out what really has been produced. It’s not a failure of mediation to discuss and resolve discovery disputes and get each party the information they need to try and settle. The parties will likely blame each other for not having provided sufficient disclosure prior to the mediation — that happens in most cases — but the reality is that until mediation puts a microscope to the issues, neither party may know exactly what was needed for the case.
In preparing your client for mediation, try to stress the many things you can get done which will benefit his case, while trying your hardest to settle all or most of the issues short of trial.
“There is no failure except in no longer trying.” – Chris Bradford