Why Even a Failed Mediation is Beneficial

“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 Zoom 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.

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, ARS §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.
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.
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.
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.
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.
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

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Why Even a Failed Mediation is Beneficial

Contact Annette for a consultation

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