The Better Chancery Practice Blog

This is Part V in a five-part series by attorney and mediator Lydia Quarles with some insights into how you can help ensure success in your domestic mediation.

THE $64,000 QUESTION

When I am mediating a domestic issue, I always begin the first caucus with this question to the party: “If you could be your own judge — and I know that you would be reasonable and fair, knowing that you cannot have it all – how would you determine the issues that face you and the other party, and why would you do it that way?”

Prepare your client to be able to identify the issues that must be resolved for mediation to be effective, and how he/she would resolve them and why. The ability to communicate this to the mediator can go a long way in preparing your client to understand that there is give and take in mediation that there will not be in a trial. It also prepares your client to be reasonable and sensitive in approaching emotional issues.

Remind him/her that things can be resolved in mediation that cannot even be broached in a courtroom and if some of those things are of significance to him/her, this is the opportunity to discuss them and sort them out.

This is Part IV in a five-part series by attorney and mediator Lydia Quarles with some insights into how you can help ensure success in your domestic mediation.

LYDIA’S CHEAT SHEET

Questions to ask yourself in order to aid the mediator if the process gets bogged down:

• What does my client want to achieve?
• What does my client think the other party wants to achieve? 
• Does my client have any particular expectations about the process or expectations about the resolution? 
• Can my client identify for the mediator what he/she believes the key issues are? 
• Can my party identify for the mediator what he/she believes the key stumbling blocks to resolving the issues are, either for him/herself or for the other party? 
• Does my client have to “account” to others for the resolution which may be reached, or “explain” his/her decision to others (advisor, family, friend)? If so, what do I need to know about those others? 
• Does my client have an interest in maintaining a relationship with the other party or, for that matter, initiating a better relationship with the other party? In Chancery matters, it is often significant for relationship protection to occur within the context of a mediation. Chancery is often the “family court” and family matters, however strained, can be protected and, with a good mediator, even improved. 
• Does my client perceive that the other party has ulterior motives? 
• Does my client have personal goals that will be affected by the outcome of the process? 
• Are there any outside constraints on the outcome, either real or perceived?

This is Part III in a five-part series by attorney and mediator Lydia Quarles with some insights into how you can help ensure success in your domestic mediation.

LEARN TO USE SILENCE AND TIME AS ALLIES

As litigators, we talk.

In mediation, it’s different. We must learn to use silence and time as allies. First of all, parties need to vent. Most mediators will give all parties a period of time to vent in a joint session. Encourage your client to listen respectfully – really listen – while the other party tells his/her story. If this party feels that he has been heard, it makes a difference in the remainder of the mediation.

Recognize that one party to the mediation may need silence and/or time to contemplate. That party may be on the verge of coming to a resolution which causes him/her to give up something dear, to realize that he/she has made erroneous assumptions, or to personally address his/her fear of loss of power, prestige or status. We must give the party time to process those feelings and thoughts.

Mediation is a process. Time and silence are allies.

This is Part II in a five-part series by attorney and mediator Lydia Quarles with some insights into how you can help ensure success in your domestic mediation.

CAPTURE THE CONFIDENCE OF THE PARTY OPPOSITE

Daniel Yankelovich says, in The Magic of Dialogue: Transforming Conflict into Cooperation: “There is no greater obstacle to dialog than mistrust.” Litigation is laced with mistrust. In order for us to be effective for our client in mediation, we must focus on the party opposite and capture their attention and confidence. It is only after that party has deemed us to be trustworthy and rational that we can begin to effectively combat the mistrust that the parties have built up for each other, disclosed or undisclosed.

One way to develop this rapport is to reiterate the goodwill with which you and your client have approached the mediation. Remind party opposite that there is a mutuality of purpose between them, and that purpose is the successful resolution of a joint problem. Encourage them to listen to each other, and listen to each other empathically. Remind everyone that people are rarely the demons that they may seem.

One of the simplest ways to capture the attention and confidence of another is to demonstrate a genuine interest in him/her. It is refreshing for a party to hear that while in the courtroom you will come on like a tiger, mediation is the place where we can all be willing to relax and explore options that will not be available at trial. I always like to remind my client and party opposite that you can never predict what a trial judge or jury may do, and mediation is the last best opportunity to take control of their future. While they may not get everything they want in mediation, they surely will not get everything they want as the result of a trial.

This is Part I in a five-part series by attorney and mediator Lydia Quarles with some insights into how you can help ensure success in your domestic mediation.

DON’T BE AN ADVOCATE

What are the “to dos” of being an effective counsel in a mediation setting?

As lawyers, we have been taught advocacy, and advocacy has a part in mediation. But zealous advocacy does not.

Instead of advocating for our client in a mediation setting, step back and consider why our client has chosen to mediate (or why the judge has demanded we mediate) and, within those parameters, how we can be most effective.

Mediation is a different animal from litigation and we must recognize this in order to be effective for our client. In many ways, becoming an effective counsel in a mediation setting is a paradigm shift. In our heads, we must see our client and the opposite party as joint problem-solvers, not adversaries. We must coach them to work together to reach a wise and workable decision. We must encourage them to be open about their interests and look for win-win opportunities.

This is difficult. It is not in our adversarial nature to lead our client to such rational behavior. And it certainly is not the mindset of the client during the course of a lawsuit. But we must lead our client to rational behavior, sensitive behavior and nuanced attention to detail in order that we, together – client and attorney – can get the best result in mediation.