Getting a divorce is emotionally draining as it is. On top of that, if you take the traditional route of court litigation, your divorce can drag on for months and may cost you a fortune.
If you are separating amicably, however, you can try the less expensive, more open-minded, and relatively quick way of Alternative Dispute Resolution (ADR), one of which is mediation.
As experienced St. Louis divorce mediation attorneys, we have often helped our clients resolve their legal separation issues at the mediation table rather than in the courtroom. To make mediation successful, divorce lawyers need to do more than merely show up for the meetings and dispute every statement the opposition makes.
You need to prepare for a mediation meeting as if you were preparing for a deposition or a courtroom argument. You need to put your client’s best interest above everything else to ensure they get the compensation and peace of mind they deserve.
Here are a few huge mistakes that you, as a mediation lawyer, should avoid at all costs.
1. Not Knowing When to Mediate
One of the most common mistakes a divorce mediation attorney can make is to not know when to mediate. As you probably know, each divorce case is unique. So, you can’t apply hard-and-fast rules for each case. Every couple will take their own sweet time to decide if they want to sit at the table and talk things out amicably or go to court.
You can confer with your client early during the divorce process about the option of mediation. It can help if you have a good working relationship with the attorney representing your client’s spouse.
If possible, both of you can try to convince your respective clients to come to the discussion table. But, the final decision rests with your clients. If they don’t want to mediate and choose the path of litigation, you have to support them.
2. Starting with a Non-negotiable Position
Another most common mistake a divorce mediation lawyer can make is starting with a non-negotiable position. You will need to be at least somewhat flexible, and so will the other side. Both parties will need to start at a point where reasonable discussions can take place.
That’s why you will also need a negotiation plan. You will need a concrete plan that will tell you how to begin your negotiations and how to get to the bottom line without hurting your client’s interest. As a lawyer, you must know the facts about a couple getting divorced and applicable laws.
When creating your negotiation plan, make sure to consider how experienced your opposing counsel is. Also, be realistic about the consequences if the negotiations don’t go through. Be sure to make your client aware of these facts before starting the mediation.
3. Failure to Listen Carefully
Walking into mediation with rigid negotiation principles or beliefs will keep you from listening to the other side. That, in turn, can lead to delay or even end the mediation. You should listen to the other side as carefully as you would want them to hear your arguments.
If you are listening carefully, you may be able to find new facts and issues that can help you negotiate better. It may also help you understand if the deal you are being presented with is reasonable enough to avoid a lengthy and costly trial.
But most importantly, if you listen carefully, you are in a better position to offer the right advice to your client. Furthermore, if you listen to the other party diligently, it can also help you during the discovery process.
4. Not Sending Mediation Brief
As an attorney, you may have learned to write excellent appellate briefs and closing arguments. However, as experienced St. Louis divorce mediation attorneys, we have seen that divorce lawyers often have to write mediation briefs because most divorce cases are settled, not tried.
Unfortunately, mediation briefs are one of the most overlooked briefs. If you fail to send a mediation brief or send a poorly written one to the other party, the negotiations may fail to take off. On the other hand, a well-articulated mediation brief can help convince the other party that they shouldn’t set their expectation higher or value some of the assets too high.
Thus, it can help you get a favorable settlement. You also need to send the brief on time. Sending it out the night before the mediation begins will leave the other side with no time to work on it. Sometimes, the other party may need more time to go through the brief and prepare for the negotiations. So, make sure to send it well in advance.
5. Not Doing Your Homework
Before heading into the mediation room, you need to know your case thoroughly. The mediator is here to help you proceed smoothly with the negotiations, not to tell you what to do. So, only you can help your client and the other side to understand your position better and get the best possible outcome through these negotiations.
You should start by preparing a list of all your client’s assets, possessions, and debts. Make sure to include everything from personal items like books and paintings to real estate investments and insurance in your list.
Also, get the records of all the income sources. You can hire an accountant to get the real market value of everything your client and their spouse own individually or jointly. You can also talk to the mediator and the opposite side’s lawyer to discuss any non-legal factors about your case.
6. Failure to Prepare Your Client for Mediation
In divorce mediation, your client and their spouse are the decision-makers, not lawyers or the mediator. So, your client needs to know how the mediation process works. It will help them reach the best possible settlement.
Before the process begins, be sure to teach your client how to negotiate. Also, make them aware of the fact that they have to consider their own and their spouse’s liability issues while negotiating. Discuss the various strengths and weaknesses of your client and their spouse and make sure the formers understands how these factors can affect the negotiations.
It is also necessary to make sure your client understands the power of persuasion. However, your client should never reveal their bottom line when negotiating. If possible, you can rehearse the process with your client to make them better prepared for the actual meeting.
Mediation is one of the best and most common ways to dissolve a marriage. It allows you to reach a mutually agreeable decision through discussions to divide your assets and dissolve your relationship. However, as a mediation lawyer, it is your responsibility to ensure your client is treated justly. Hopefully, learning about these mistakes will help you negotiate a better deal on your client’s behalf.