As an alternate means of dispute resolution, mediation is often an avenue that parties will be directed toward prior to litigation. After my own experience in several mediation proceedings, here are some thoughts for those who are either preparing for, or engaged in, family law mediation:
1. Know your end-state. Go into mediation fully prepared, having done your homework. If you go in unprepared, the mediator will have absolute control over the discussion and you will be left to react. Know what is truly important and let those principles guide you.
2. Maintain the initiative. Time is money. Unethical mediators won't hesitate to enter into open discussions with you in order to burn up your deposit and require you to pay them more.
3. You are your own honest broker. No one is a better advocate for you. Never sign anything without your own attorney's review or without knowing that you made the right choice.
4. Stay above the fray. Your ego can be your worst enemy. Don't go in trying to "win" an argument. Keep what is important to you at the forefront of the mediation and the negotiations. Remind the mediator when they are off-base.
5. Know when the mediator is working against you. Make no mistake: unethical mediators are fully capable of taking sides. If you believe they are (even if it's on your own side), you should remind them that they are a neutral party. Biased mediators will destroy an agreement well before it's drafted. As harsh as it may sound, many mediators won't hesitate to take a stance that is not supported by the law. Call your mediator on what you suspect to be biases or misrepresentations. If a mediator seems to want an agreement more than you do, alarm bells should be going off....
6. Trust your instincts. Unethical mediators will deliberately misrepresent their understanding of the law in order to drive you toward an agreement, at your own expense. It's common for them to make statements such as, "I have consulted with several of my colleagues who are familiar with this aspect of the law and they believe you do not have a good case...." It's often a lie, designed to cover up their own lack of preparation or unwillingness to remain impartial.
7. You are your own attorney (even if you bring one with you). You can bring your attorney to mediation. Much depends on your opposition. If you believe that an agreement is likely and they have the capacity to compromise, bring your attorney and document all agreements made on the spot. If you don't have an attorney with you, have the mediator provide a draft agreement to your attorney for review at the soonest opportunity. Don't allow delays by the mediator.
8. Know that some attorneys work together. Mediators are often attorneys themselves. They often know one another well from past cases, professional associations, and frequently through law schools or social acquaintances. That's normally not a problem, but often you will be left interpreting whether it is or not. If it's an obstacle, trust your instincts and get a new mediator. Insist that the mediator disclose any past association with attorneys who are involved in your case.
9. Be open to saying "yes," but be prepared to say "no." Compromise in areas where it makes sense. Know where and when to compromise going in. Know what is non-negotiable: your bottom-line (or "BATNA" as it's been called).
10. Disagree. If you suspect that your mediator is not neutral or impartial, here's a strategy for you: disagree with your mediator on a substantive point of importance to you and see if she is willing to take your point under advisement. If she automatically takes the opposition's side or starts to accuse you of violating a negotiated agreement, it's time to fire the mediator. Don't hesitate to do it: it's your money, your prerogative, and your time. And your future.
11. Be Ready to Go to Court. It's your right. But many mediators feel it's their job to keep you from doing just that. They'll do everything they can to make you feel unreasonable in order to pressure you back to the negotiating table. Negotiate, by all means. But be ready to go to court. At least in court, you can expect well-reasoned, honest and thoughtful analysis. Unquestionably, it's more expensive to go to court, but you wouldn't be in mediation if you weren't heading in that direction anyway.
12. Beware of Diminishing Returns. When the time with the mediator goes on without any substantive compromise or result forthcoming, you are spending money. Lots of it. And it's time to ask if you are getting a return on your investment. But also know when to compromise--if it's a trivial point, compromise.
13. Never Give Away Your Rights through a Negotiated Agreement. Your rights are yours. Unless you relinquish them. If you have a previous agreement that you are satisfied with, that is the law. Only you can open the tenets of that agreement to negotiation. Some mediators may try to change past agreements in the interest of arriving at a negotiated solution. Some tenets may need to change based on changed circumstances, but most do not need to change at all.
14. Your Signature Can Become the Law. Be careful what you sign! Think everything through...all of the contingencies and second and third order effects. Again, have your attorney review any agreement before signing.
15. Insist on a Written Deliverable. If your mediator does not produce a draft agreement for your review within several days after your first round of mediation, she is incompetent and is probably not an honest broker. Chances are, in this case, you are also an after-thought to her. My advice: Fire her (or him). Don't give it a second thought.
Here are the most Common Codes of Conduct for Mediators:
-a commitment to inform participants as to the process of mediation.
-the need to adopt a neutral stance towards all parties to the mediation, revealing any potential conflicts of interest.
-the requirement for a mediator to conduct the mediation in an impartial manner
-within the bounds of the legal framework under which the mediation is undertaken any information gained by the mediators should be treated as confidential.
-mediators should be mindful of the psychological and physical wellbeing of all the mediations participants.
-mediators should not offer legal advice, rather they should direct participants to appropriate sources for the provision of any advice they might need.
-mediators should seek to maintain their skills by engaging in ongoing training in the mediation process.
-mediators should practice only in those fields in which they have expertise gained by their own experience or training.