“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.
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.
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