Greetings, family law warriors! As a former family law judge and now full-time mediator, I've had the privilege of witnessing a wide range of mediation approaches – some that hit the mark beautifully and others that, while well-intentioned, could use a bit of fine-tuning. Through these experiences, I've learned a few tricks of the trade that I'm eager to share. Whether you're a seasoned mediation maestro or just stepping into the ring for the first time, I hope these tips will serve as valuable tools to help you navigate your mediations with confidence and success.

1. Preparation: Your Secret Weapon

Preparation is the cornerstone of any successful mediation. Just as you wouldn't step into a courtroom without a clear argument and all the evidence you plan to present, approaching mediation without thorough preparation is a recipe for disaster. Success in mediation hinges not only on knowing your facts but also on presenting a well-structured plan that your mediator can rely on extensively.

Do:

• Meet with Your Client: Before the big day, take the time to sit down with your client. Yes, actually meet with your client before mediation. If an in-person meeting isn't possible, set up a Zoom call, especially if the mediation itself will be virtual. Work out any tech issues beforehand. Trust me, spending ten minutes walking your client through turning on their video is a colossal waste of time, stresses everyone out, and doesn't reflect well on you.
• Set Clear, Realistic Expectations and Goals: During your prep meeting, make sure you and your client are on the same page regarding case goals. Discovering what your client expects or wants during the mediation is risky. Chances are, they have different goals and expectations than you, and they may not understand why their wish list won't materialize. It's crucial to manage these expectations before the session begins. Otherwise, their dashed hopes will be blamed on you, or worse, they'll think you caved to the other side.
• Gather All Necessary Information: Ensure you have all the information in hand that you and the other side need to make informed decisions. Preparation isn't just about framing your arguments; it's about creating a structured approach to resolve the issues at hand. The best way to do this is by having all the necessary information ready, not only for you but for the other side as well. As we emphasize in our Mediation Instructions:

“We have found it beneficial for the parties to exchange ALL information needed to make informed decisions about their case BEFORE appearing for mediation. By doing so in advance, everyone will be ready to engage in meaningful negotiations without delay. Exchanging information before mediation eliminates the predictable, ‘we can't make a decision until we have ________.' Importantly, you'll be positioned for success by providing all information the other side needs to make decisions about the case."

• Prepare Requested Relief: Provide a detailed list of your client's requests, including all relief sought. This document is crucial because it acts as a roadmap for the mediator, much like it would for a judge. It helps the mediator understand your goals and makes the mediation process more efficient. Avoid the “I'll-do-it-tomorrow” trap – last-minute prep is like cramming for an exam the night before; it rarely ends well.

Don't:

• Don't Skip the Details: Failing to meet with your client in advance of mediation, neglecting to prepare a detailed requested for relief memo, or showing up with a subpar spreadsheet will put you at a significant disadvantage. Proper client preparation, a well-prepared spreadsheet, and a detailed list of requested relief makes a noticeable difference in the mediation process. Without these, you're leaving your success to chance – and you risk looking like a rookie in front of your client.

2. Support Your Claims: Evidence Matters

Talk is cheap. In mediation, evidence is your strongest ally. It's not just about making demands; it's about backing them up with solid documentation. This helps both your mediator, and the opposing side understand the foundation of your arguments, making the negotiation process more effective. And, if you need information from opposing counsel, make sure you get it well before the session begins. The day of mediation is NOT the time to conduct discovery!

Do:

• Provide Underlying Documents: Ensure all supporting documents are current and readily available. This includes tax returns, W-2s, paycheck stubs, statements, and any other documentation supporting your proposed division of property. Having this evidence on hand not only shows you're prepared but also underscores your credibility and strength in the mediation. 
• Share It: Be prepared to share your evidence with opposing counsel. Quick and accurate provision of your evidence keeps the mediation process moving efficiently and helps avoid unnecessary delays. Even better, send your evidence to opposing counsel in advance! You have nothing to lose by doing so, and it sends a clear message that you're ready to go if the case doesn't settle.

Don't:

• Don't Show Up Empty-Handed: Failing to provide all necessary documents to the other side will delay the process and weaken your position. Be thorough and proactive. Incomplete evidence not only hinders your ability to present a strong case but also risks derailing mediation with a request to reschedule due to missing information.

3. Child-Related Issues: Be Thorough

When it comes to child-related issues, the stakes couldn't be higher. Thorough preparation is key to addressing these important matters effectively. Ensuring you have all the relevant information at your fingertips will help you navigate child support and conservatorship issues with confidence and clarity.

Do:

• Calculate Child Support in Advance: Use the OAG Child Support Calculator for accurate calculations. This is the standard tool used by mediators and judges to calculate guidelines child support. If child support is an issue in your case, rest assured the judge will have this website open on his or her computer during the hearing. There is simply no excuse for not having your calculations done in advance of mediation.
• Gather Financial Documents: Don't rely on guesswork for child support calculations. Have your client's latest tax return, W-2s, 1099s, and recent paycheck stubs readily available. This will enable you to make precise calculations and support your claims, avoiding unnecessary delays and enhancing your credibility.
• Detail Medical Costs: Obtain a clear breakdown of the actual costs for medical and dental insurance coverage for the children. Knowing the exact costs ensures accurate child support calculations and helps avoid disputes, leading to fair and effective support arrangements.

 Don't:

• Don't Overlook Details: Incomplete or inaccurate information regarding child support or conservatorship can hinder progress. Be meticulous and thorough. Missing details can lead to misunderstandings and prolong the mediation process. Calling HR during mediation for pay stubs or benefit costs really wastes time and often results in an inability to get the information you already know you are going to need. Don't be lazy – get the earnings and insurance cost info before the session!

4. Spreadsheet Savvy - Excel in Excel

Submit your proposed property division in Excel format to the mediator before the session, and ideally, share it with opposing counsel too. If opposing counsel isn't prepared, they might default to using your spreadsheet, giving you a significant advantage. And yes, ensure your spreadsheet includes formulas that automatically update. If you're unsure how to do this, YouTube University is your friend. Remember, only one spreadsheet will be attached as an exhibit to the Mediated Settlement Agreement. You want it to be yours – the best spreadsheet wins! 

Do:

• Formulas to the Rescue: Your Excel spreadsheet should be a marvel of modern technology, complete with formulas that do the heavy lifting for you. “What If” scenarios are a breeze if you have a proper spreadsheet. Think of it as the magic wand of mediation.
• Clear and Concise: Ensure that your spreadsheet is easy to read and understand. No one wants to decipher complex code during a high-stakes negotiation.

Don't:

• Formula-Free Folly: Spreadsheets without formulas are like a car without wheels – they don't get you very far. Mistakes will be made when trying to update it, and no one will want to use it, including the mediator.
• Overcomplication: Avoid creating spreadsheets that look like they were designed by a mad scientist. Keep it simple. There should be a column for the asset or liability, one for values, and one column for Wife and another for Husband, with totals on the bottom line.

 5. Unwanted Guests

Your client's new spouse or best friend might be great company in other settings, but they don't belong at mediation. This process is designed to be a focused, professional environment without unnecessary distractions. The presence of non-parties can lead to unnecessary conflicts and disrupt mediation's purpose. Nothing stirs up controversy more than one party bringing their new partner to a mediation session, especially when emotions are already running high. 

Do:

• Limit Attendees: Only bring essential parties to mediation. Extra guests, such as new partners or family members, introduce unwanted dynamics and complicate the process. Keeping mediation focused and free of distractions ensures a smoother negotiation.

Don't:

• Don't Allow Your Client to Bring Unnecessary Guests: Their presence will lead to unnecessary drama. Uninvited guests can create tensions that hinder the process and detract from the goal of reaching resolution.
• Rare Exception: In certain situations, such as when the parents are very young, unsophisticated, or if you have a particularly unreasonable client, having someone the client trusts present to help with decision-making might be beneficial. Exceptions to the “parties only” rule should be made sparingly and on a case-by-case basis. If allowed to stay, I always set clear expectations – if the non-party creates drama or becomes a distraction, they will be asked to leave the session.

6. Sharing Information: Transparency is Key

Open communication and transparency are essential ingredients for a successful mediation. When both sides provide information in advance, it not only prevents last-minute surprises but also paves the way for a smoother, more efficient process. Transparency fosters trust, which in turn leads to more productive and meaningful negotiations.

Do:

• Be Open with Information: Share all necessary information with the opposing side before mediation. This helps eliminate excuses and posturing, allowing for a more focused discussion. Transparency accelerates the mediation process and reduces misunderstandings.

 Don't:

• Don't Withhold Information: Keeping critical information hidden can lead to delays and increased tensions. Be thorough and open. Lack of transparency can create obstacles and hinder progress.

7. Avoid the “Rambo” Approach: Sabre Rattling Rarely Works

One common mistake is starting with aggressive tactics or unreasonable demands, which can undermine the mediation process. The aim should be to work towards a fair resolution rather than resorting to threats or chest beating.

Do:

• Stay Professional: Avoid making extreme demands or threatening to take the case to court. Focus on finding creative solutions and be open to compromise. Approach mediation with a collaborative mindset.
• Respect the Mediator: Recognize that the mediator is there to assist and not to be a target of aggression. Engage constructively and consider the mediator's suggestions as valuable guidance.

Don't:

• Avoid Aggressive Tactics: Ultimatums and aggressive strategies can harm your credibility and disrupt the mediation process. Aim for cooperation and problem-solving. Drastic “deal-breaker” ultimatums often require retraction. You almost always have to walk back a deal-breaker demand.

8. Flexibility and Adaptability: The Key to Success

Flexibility and a willingness to adapt are crucial for successful mediation. The ability to adjust your goals based on the mediator's guidance can lead to better outcomes. Adaptability ensures that you remain open to finding mutually agreeable solutions.

Do:

• Be Open to Solutions: Embrace creative and alternative solutions and be willing to modify your stance. Flexibility fosters a collaborative atmosphere and can lead to innovative and effective resolutions. Always strive for a “win-win” solution.

 Don't:

• Avoid Rigidity: Inflexibility can stall progress and lead to deadlock. Rigidity impedes negotiations and can hinder achievement of a satisfactory resolution.
• Don't Take It Personally: Remember that mediation is about finding solutions, not winning or losing. Stay focused on achieving a fair outcome for your client rather than personal victories.

9. Mediation Fees: Ensure Payment is Handled Up Front

Take care of the mediation fees before the session. Handling financial matters professionally and upfront prevents disputes and ensures the mediation proceeds without unnecessary delay.

Do: 

• Pay Promptly: Ensure your client's portion of the mediation fee is settled before the session begins. This avoids placing the mediator in the awkward position of managing payment issues during the session and reflects your professionalism and respect for the process.

Don't:

• Don't Delay Payments: Delayed or missing payments may lead to claims about lack of neutrality and objectivity. Unresolved payment issues can affect a party's perception of fairness.

10. Addressing Fees and Costs Beyond Mediation

It is equally important to consider the financial implications if mediation doesn't lead to resolution. Clients often need a “reality check” regarding what lies ahead if their case doesn't settle. Providing a clear picture of these costs helps prepare your client for all possible outcomes and ensures they're well-informed as they make decisions.

Do:

• Cost Clarity: Be ready to provide a realistic estimate of what expenses might be incurred if mediation fails. It's like giving your client a financial roadmap – it helps them understand the stakes.
• Budget Awareness: If the case does not settle, your client must be aware of the potential fees that will be incurred for trial. A clear picture of this financial impact often brings clients to the negotiating table with a more realistic mindset.

Don't: 

• Ignore Costs: Failing to have a well thought out budget for litigation costs is like ordering a fancy meal and forgetting to budget for the tip – you'll be caught off guard with “unexpected” expenses.
• Fail to Have Accurate Estimates: Don't come to mediation without a clear estimate of potential attorney's fees to move forward to the next level, be that a temporary orders hearing or a trial. And don't forget the cost to mediate for final, required by most courts in all cases.

Conclusion: The Value of Judicial Experience

Family law mediation can be challenging, but with the right approach, it can lead to productive and satisfactory outcomes. I believe a key benefit of working with a former family law judge as your mediator is the ability to provide clients with a realistic preview of what they can expect in court. My experience on the bench equips me an understanding of courtroom dynamics and the practical realities of family law cases from the court's point of view. This insight can be invaluable, especially when dealing with clients who may have unrealistic expectations. By offering clear, practical guidance, I can help your clients understand likely outcomes of their case, which can lead to more effective negotiations and resolutions. If you need a mediator who combines judicial experience with practical insights, I would be honored to assist you!

Armatys Millard Is Here to Help!

Walter Armatys and John Millard have significant family law experience, both as trial lawyers and as Family Court Judges. This judicial experience gave Walter and John a keen insight into how Judges think, what persuades them, what annoys them, and, importantly, what information Judges need to make an appropriate ruling. Armatys Millard provides mediation and arbitration services for family law disputes pending in Fort Bend, Harris, and surrounding counties. You can count on our extensive family law experience and judicial wisdom to help successfully resolve your case.

CONTACT US NOW

If you need to mediate or arbitrate a divorce, custody dispute, or other family law issue, Armatys Millard, PLLC can help. Check availability and book your session online or call our office at 281-313-6800. We're here to help!