Mediation For Lawyers
Sadly, many lawyers think of mediation as a required but often pointless step in litigation. even more sadly, that’s often true; mediators who don’t have the domain knowledge to fully understand a dispute are unlikely to help much, and mediation that happens in the actual courthouse tends to be rushed. A lawyer, who knows the facts and personalities of the case, looks at a mediator, who often doesn’t, and is skeptical that someone without that knowledge will be able to help.
One of the best analogies I’ve come up with to explain the difference between the mediation that settles cases and mediation that just checks the box is that finding a mediator should be like finding a tattoo artist. For those of you without ink, let me explain that tattoos range from dirt cheap to extremely expensive, and, while most very cheap tattoos look very cheap, many extremely expensive tattoos also look very cheap. Cost isn’t the way to assess a tattoo artist or a mediator, except for the fact that, if it’s free or very cheap, it’s probably worth about that much.
Instead, what you should be looking for is someone who will take the time to know you in particular, and you, as the person involved, should be willing to pay that person to get to know what you want. For a mediator, this means finding someone that you have a good connection with, but also being willing to pay for the process during which the mediator will get to know the parties and the dispute. Anyone can sit and tell you to maybe ‘split the difference,’ just as anyone can tattoo a skull on your arm. How happy are you likely to be with either of those in six months? Better to have a real relationship and some solid prep work that’s just for you.
I called this post Mediation for Lawyers because often, a big part of this process is getting the lawyers involved. Consider a divorce, with two spouses and two lawyers. We can take the two spouses and often get some great work done, but we also need to make sure that we are addressing concerns from the lawyers involved, and those may not be at all obvious. What we do here is make sure we’re at least touching base with retained counsel, and our mediators always have the knowledge necessary to talk to attorneys and understand their approach to the case. A simple example can help make this clear, and show the benefit of paid prep work.
Imagine Alice and Bob have been living together for 20 years, dating and sharing a house. They‘re splitting up and come for help dividing assets, mostly the house. But, when Bob talks to a lawyer, he finds out he might be married to Alice! Some states have common-law marriage, and over 20 years, it’s certainly possible that Alice and Bob accidentally got married, even if their state doesn’t have common-law marriage. Alice, alarmed, retains counsel as well, but the two parties still want to mediate. Imagine that Alice’s new lawyer is sure they’re not married, but Bob’s thinks they might be, and Alice makes a lot more money than Bob.
A mediation between just Alice and Bob could be massively helpful, but! If the parties and the mediator never address whether the parties are married, it’s unlikely any deals between the parties will survive review by their lawyers. Alice will be advised not to sign anything that would still let Bob pursue more in spousal support at court, and Bob wouldn’t be advised to surrender the right to do so without specific guarantees. Alice and Bob can’t decide the law, of course, but as long as they and the mediator know what the issues are, their agreement can avoid getting shot down by counsel, and the parties can settle without a long, drawn-out litigation.
So, I believe that, just as you wouldn’t get a cheap tattoo picked at random off the wall, you shouldn’t settle for a mediator with a one-size-fits-all approach, and specifically you need a mediator who can work with lawyers if lawyers are involved. If you feel you have such a matter, or if your matter has already suffered from the lawyers and mediators speaking different languages, consider shooting us an email.
