The “art of mediation” is that there is no script to follow.
What do I mean by that? Certainly there is a process. You prepare for mediation by learning the facts, understanding your client’s case and knowing the law. Moreover, you know how to negotiate. When I say, “there is no script to follow” I mean there is much more than just knowing the facts and law. You have to be ready for the process to take on different shapes and go in different directions, sometimes at a moment’s notice.
Mediation is a place where a creative attorney can really make a difference. Recently, I sat through a divorce mediation that took on a typical shape. The parties were negotiating bank accounts, the home, and how to split taxes and other property. Hours upon hours passed by as offers were passed back and forth between husband and wife. Each offer was rejected and countered. As the parties sat in their respective conference rooms and the hours passed, we knew we were either getting closer to a deal or calling it a day.
When parties come together to mediate, generally they draw a line in the sand regarding the amount of money, property, or debts they are willing to give up or take. When we enter mediation, we know our own clients, but try to make educated guesses at what the opposing party’s line in the sand will be. Four hours into this mediation, we discovered the opposing party’s line in the sand. When he said “no more; I will not give up another dime”, we thought we were stuck. We knew our client’s line in the sand and we just found opposing party’s. However, we waited and decided to get creative. This is where the “art of mediation” came into play.
The parties shared a beautiful koi pond behind their home when they resided together. However, up to that point in mediation not a word was spoken about these beautiful, exotic fish. So, in an attempt to make up the not insubstantial difference between the parties’ lines in the sand, a division of the fish was offered. And, that offer was accepted.
My point here is always know what your clients have and what the opposing party might want. It is not just about the strict interpretations of the law and knowing the basic facts of the case. It is not always about equity in the home and bank accounts. It is about knowing the parties’ wants and desires. It is about being able to think outside of the box to help your client get a result that is both beneficial and intelligent. It is about the “art of mediation.”
Mediation is a wonderful tool that reduces cost and conflict for our clients and lets clients have a say so in the outcome without waiting, sometimes for a long time, for a judge to make a decision. It allows your client to find closure early in the process without the stress of waiting for a final hearing, because closure is what matters. Being able to move on with your life and blossom again is what it is all about. We know that once this process is over, clients are ready to start a new journey in their new lives.
And it is our job to make sure that happens.