Don’t blow up your chance of mediation by making these common mediation mistakes.
Attorneys get paid for good advice. Sometimes your clients take it, and sometimes they don’t.
But once in a while, attorneys could use some advice of their own. In my role as a mediator, I frequently observe smart attorneys floundering when it comes to advising their clients about mediation issues. When mediation isn’t the focus of your practice, it is understandable. Or if you are still new to the legal profession, you may not have ever been exposed to any education about best practices in mediation.
If you fall into either of these categories, or could use a refresher, we’ve put together a list of common mistakes AND ways to avoid them based on our many years of experience with mediation as the focus of our practice at Weber Dispute Resolution.
Misunderstanding your role as an advising attorney
The advising attorney’s job is to ensure the client can make informed decisions. But often, attorneys act like litigators when they were hired to be advisors. When you are advising, your job is simply to advise your client about the law, and what they can expect if the matter proceeds to court. This is not the time to sugar coat reality for the client. Honesty is the best policy.
Remember, the client has chosen to mediate to avoid adversarial litigation. Approaching the case as a zealous advocate misses the mark. You are not in charge. Your client is in charge. Ensure sure your client makes informed choices by making sure they understand any potential results of the decisions affecting the final settlement results. Using your legal knowledge to think through all possible scenarios is your true value to the client.
Filing motions during mediation
Every now and then with a mediation, a client may get spooked about something. Maybe it’s about spousal support or child custody. They go to an attorney to file a motion while already engaged in mediation. The knee jerk reaction to file a motion does untold damage to the mediator’s ability to manage and ultimately settle the case.
Introducing adversarial processes is destructive to mediation. Emergencies happen and I understand this. Rather than file motions at court, parties can schedule an emergency mediation session.
At Weber Dispute Resolution, you can often have an emergency addressed within 48 hours. Most of the time, we can resolve the problem WAY before a court can. In San Diego County, motions can take months to be heard. The court is continually restricting what it considers an emergency. Ex parte requests are denied more frequently. In mediation, we may be able to short circuit emergencies before you need to file a motion.
Sometimes counsel is worried about jurisdiction for retroactivity of support. As a result, an attorney is tempted to file a motion for child and/or spousal support. This is truly an unnecessary and costly exercise. Rather than file a motion, parties can agree by stipulation to reserve jurisdiction over retroactivity. Weber Dispute Resolution does this frequently in mediation. If you worry about needing to file a motion to prevent loss of retroactivity or some other jurisdictional issue, approach the mediator with a proposal to stipulate to retroactivity.
Proffering formal discovery
I get it. Old habits are hard to break. Sometimes an attorney barrels ahead and serves formal discovery during the mediation process. Again, this injects the adversarial element into a case and is an additional unnecessary cost. As part of mediation, all discovery can be informal. Mediation can’t continue if financial disclosure isn’t forthcoming.
Rather than serve subpoenas or other formal discovery, consider bringing up the discovery concern during mediation. A good mediator will work with the parties to ensure all necessary discovery happens and all parties receive the information they need. Parties can stipulate and agree to deadlines to provide information as well as a list of what is to be provided. In my experience, people are more likely to comply with informal discovery requests when they are part of voluntary non-adversarial processes. However, when adversarial formal discovery appears, cooperation greatly reduces.
Treating the mediator like a judge
Sometimes an inexperienced attorney will ‘argue’ the case in mediation in front of the mediator, as if the mediator would rule on a decision like a judge. A mediator doesn’t get a vote. The mediator’s job is to facilitate agreement, not to decide anything unilaterally. Arguing with the mediator like you do in court is counterproductive. Rather, coach your client on how to make interest-based proposals. Don’t try to convince your mediator regarding the merits of the case. Instead, work cooperatively with the mediator to identify viable proposals.
Showing up for mediation without any notice
Occasionally, I will have a mediation session where a party brings their attorney without notice, and it’s a surprise to everyone in the room. I don’t oppose attorneys participating in a mediation process. In fact, I encourage it. But showing up to a mediation session without notice can feel like an ambush to the other party. It can also throw off the neutrality of the process. Perhaps if the other party was notified, he or she might have wanted to have their own attorney attend.
If your client wants to you attend, talk to the mediator in advance so there are no surprises. You’ll waste your client’s money showing up as a surprise, causing the mediation session to be rescheduled because the other party doesn’t want to proceed. In my mediation process, attorneys are fine as long as both parties have counsel. Balance is key.
Assuming you need a retired judge as mediator
Mediators come in all shapes and sizes. Some are attorneys. Some are mental health professionals. Some are financial professionals. A few are retired judges.
It’s important to hire your mediator based on the skill set you need for your client. A retired judge is ideal when you need an evaluative mediation, where the judge will offer an opinion of how he or she would rule if the case were in court.
Some cases require a facilitator rather than an evaluator. A facilitator helps parties learn how to listen and hear each other, and to communicate their needs and interests more effectively. They really get into the world the clients are experiencing to find the clarity needed to uncover pathways to settlement. This requires specialized training many retired judges lack.
Spend time assessing the type mediation best suited to the clients and the case. Find a mediator who fits this need.
Using mediation too late in the legal process
Attorneys sometimes turn to mediation right before a trial starts, after years spent in litigation. This is a waste of time. An advantage of mediation is the potential to reduce your client’s fees. If you just want to churn fees, you can stop reading right now. But if you are the kind of attorney who cares about your client’s best interests, then you want to get your client into mediation sooner rather than later.
Use the mediator to manage the discovery process. Discovery is typically the most expensive portion of any case. Let the mediator help reach interim agreements rather than spending tens of thousands litigating interim motions. A good mediator can also do a lot to manage the case early in the process. This will reduce unnecessary fees. It reduces your client’s stress levels. And it reduces YOUR stress levels, too.
Second guessing hard-fought agreements
Sometimes I will spend hours, days, or sometimes weeks with a party in negotiations. We perform a delicate dance stitching together a balanced agreement based on the emotional, legal and financial needs of both parties. Then one person goes to their attorney, who was never in the room and has no idea of the context for the agreement. The attorney torpedos the agreement, undoing hours and hours of hard work. Inevitably, the case falls out of mediation, because the other party becomes angry the agreement is changing.
Be careful advising your client based on hearsay. Take time to understand the context of the agreement, how and why it was reached. It helps if the client involves you earlier in the process, rather than bringing an agreement to you after the fact without all the facts.
Avoid mediation mistakes! Call on Weber Dispute Resolution for advice
I welcome attorneys calling me to get context. With the parties’ permission, we can have a discussion and figure out where your case landed, and how it can be redirected down the right path. Contact us online today or call us at 858-410-0144.
I have learned what works for attorneys preparing for the MSC, and what doesn’t. You can benefit from my experience with these eight tips.
I have volunteered as a mandatory settlement conference (MSC) temporary judge in San Diego Superior Court for many years. I’ve also privately negotiated hundreds of settlement conferences. I have learned what works for attorneys preparing for the MSC, and what doesn’t. You can benefit from my experience with these eight tips.
While I’m sure these ideas will work in any court-facilitated settlement program, these are written specifically with the San Diego family law practitioner in mind.
Take the meeting seriously.
Getting scheduled on the mandatory settlement conference calendar in San Diego County can take months. Settlement judges are volunteers and there aren’t enough to go around. A lot goes into assigning and calendaring your case.
Your client expects you to be ready for negotiation. He or she is paying you to prepare. You are doing your client a disservice and insulting the settlement judge if you are ill-prepared by wasting their time and money.
Many times in my role as a volunteer settlement judge, attorneys aren’t taking the meeting seriously. This is a lost opportunity for clients. Help your client find closure without the expense and trauma of litigation. If you still have to proceed to trial, perhaps you can at least solve some issues — the difference between a three-hour set and a three-day trial on the wheel.
Prepare a well-written brief.
When volunteering as a settlement judge, it can be disheartening to receive a flimsy ill-prepared brief full of typos, incorrect names, and out of date citations. It is simply unprofessional and could be malpractice. Your MSC brief needs ALL of the information you would take to trial. It’s poor form to make arguments or claims in the law unsupported by the evidence in your brief.
If documents are required to make your client’s Epstein claim or reimbursement request, you’d better have them attached to your written statement. If you don’t, an experienced attorney may successfully get it excluded when you bring it to trial.
Don’t waste time – time is money in legal matters!
In San Diego, parties are not required to meet and confer before the MSC. But why wouldn’t you try? Maybe you could settle the case before wasting anyone’s time or money. It never hurts to talk about how far apart you might be. You may find more common ground than you thought.
If you can settle without an MSC, do it.
I participated in a conference not long ago where it was clear a simple phone call could have settled everything. There was no need to put the parties through the expense of an MSC. The briefs showed the attorneys failed to meet and confer. The parties paid a lot of money for their attorneys to prepare and participate when a brief phone call could have done the trick. I scheduled an entire day of billable time to review the briefs and to participate as a settlement judge. Instead of billing their clients to prepare an MSC brief, they could have just prepared the MSA. Now they are billing their clients for both.
Don’t schedule the MSC if you don’t intend to settle.
At several settlement conferences, it was clear there was never any serious intention to settle anything. The attorneys were punching their card so they could get a trial date. If it is clear a case can’t settle in a mandatory settlement conference, the judge may be willing to skip the MSC and set the case for trial immediately. The court doesn’t want to waste valuable MSC time either.
Be polite and professional.
You shouldn’t need a referee during a settlement conference! Be polite and professional.
Years ago, I was disappointed by the unprofessional behavior of two seasoned attorneys in a conference They refused to speak to each other or to sit at the same table. I even had the two parties come to me together and confide with a longing look on their faces how they didn’t understand why their attorneys refused to settle. They asked if I could help. I was astonished, but I made the attempt. The attorneys struggled but finally managed to put their clients first and we concluded the case.
How embarrassing. No wonder people hate lawyers. Do us all a favor. Check the bad behavior, the grandstanding, and the aggression at the door, and help your client settle.
Prepare your clients for compromise.
Meriam-Webster defines compromise as “to come to agreement by mutual concession.” For there to be a compromise, both parties need to give a little.
Going to court has inherent risks. You may think your client has the mythical “slam-dunk” case. There is no such thing. The case may not go exactly as you thought. In family law, judges have a lot of latitude and discretion. Help your client understand that the risk of going to trial, even if you think the law supports his or her position.
When two intelligent and experienced attorneys come up with diametrically opposed arguments, one of them has to be wrong! The value of settling includes reduced stress and legal fees, and acts as an insurance policy to minimize risk. Preparing your clients by getting them away from notions of “fair” and “justice” and towards the merits of a good business decision can make all the difference when you get to the settlement conference.
Consider hiring a private settlement conference judge.
You can stipulate to a private settlement conference. Judges are happy to clear up space on the MSC calendar. Your client will enjoy some real benefits:
You can select your judge and know he or she is experienced and a good fit for the case.
You can make sure your settlement conference is facilitated by someone trained in dispute resolution.
Meeting at a mediator’s office for a settlement conference is less formal and less stressful than court.
You are not constrained by the three hour time block for an MSC in court. You can take time to come up with a thoughtfully considered agreement.
Read more about private settlement conferences here.
For our STIPULATION AND ORDER FOR PRIVATE SETTLEMENT CONFERENCE (template), click here.
You know it’s going to go badly for the attorney in the case when you read this in the opening paragraphs quoting the oath of admission required to practice law described in California Rules of Court, rule 9.7:
“These cautions are designed to remind counsel that when in the heat of a contentious trial, counsel’s zeal to protect and advance the interest of the client must be tempered by the professional and ethical constraints the legal profession demands. Unfortunately, that did not happen here.” [Emphasis added.]
Yikes!
Sanctions for revealing the contents of a custody evaluation in deposition questions
In Anka v. Yeager, an attorney asked a question during a deposition as part of a child custody dispute about the contents of a custody evaluation. The displeased trial court ordered $50,000 in sanctions against the attorney and party under Family Code sections 3025.5 and 3111. The trial court found that the attorney’s asking questions about the custody evaluation in the presence of the court reporter and videographer at the deposition constituted an unjustified, malicious and reckless disclosure of the contents of the custody evaluation.
When the sanctioned attorney appealed. She argued that the court reporter and videographer were “officers of the court” and were, therefore, exempt under 3025.5. However, the appellate court held the court reporter and videographer were not employees of the court and were therefore not exempt. The trial court did not abuse its discretion by imposing the sanctions on the attorney. The attorney by asking deposition questions referencing the custody evaluation disclosed highly personal information about the child and family. Moreover, disclosure in the form of questions in the presence of a court reporter was malicious and reckless. The court affirmed the sanction of $50,000 against the attorney but reversed the sanction against the attorney’s client.
Be careful about asking questions in a deposition about a custody evaluation!
So, what is the lesson here? In a custody cases, do not ask questions about the custody evaluation in a deposition without court clearance. If you screw this up, you may be paying a lot of money in sanctions and could even face discipline.
I have seen A LOT of malpractice by otherwise supposedly competent lawyers in the area of prenuptial agreements. The California law for prenuptial agreements is fairly strict for what will pass muster and what will be thrown out. If you don’t get it right, your prenup won’t be worth the paper it is written on.
4. There must be a waiver of further disclosure expressly waiving, in writing, any right to disclosure of the property or debts of each spouse beyond the disclosure provided. The parties should execute this prior in time to the signing of the prenup. California Family Code § 1615(a)(2)(B).
5. Both parties should have counsel. Furthermore, each attorney should sign off on the prenuptial agreement. California Family Code § 1615 (c)(1). (Technically, California Family Code section 1615(c)(3) provides that a prenuptial agreement could be enforceable with only one attorney. However, it is harder and I don’t recommend it. I won’t do a prenup without lawyers on both sides. That’s because the requirements to show that the other party was fully informed of rights and obligations is too onerous. Because it sets the single attorney up for a lawsuit, I simply won’t do it.)
6. Both parties must have had no less than seven calendar days to review the prenuptial agreement between the time it is presented in final form and it is signed. California Family Code § 1615 (c)(2).
Download the free Weber Dispute Resolution Prenup Checklist HERE!
Notary?
Although the code does not specifically require it, I always notarize my prenuptial agreements. Another tactic is to follow the agreement up with a postnuptial agreement for reinforcement.
Do a postnuptial too
Different rules apply to postnuptial agreements. So, if a court throws out the prenuptial agreement under the premarital agreement act, the same document as a postnuptial agreement may save the day
Gotta have counsel
When you are contemplating your own prenuptial agreement, make sure you do it with an attorney. Don’t rely on an online service or a paralegal service to prepare your documents. Too much can go wrong and it is very easy for a court to throw out an agreement if it doesn’t meet the requirements of the code. Also, as mentioned above, don’t let your attorney fly solo on this. So, make sure the other party has counsel.
Get it right!
Again, I have seen a lot of attorneys go down in flames because an agreement ran afoul of the code. I have seen even more agreements go down in flames because the parties tried to do it without counsel. Word to the wise: Get it right.
If another recession is looming in 2019, it could greatly affect decision making during a divorce.
It has been nearly a decade since the Great Recession. Since then, the U.S. economy has rebounded and then some. Unemployment is at record low levels, and people were finally starting to breathe easier about their financial circumstances.
But economists will tell you that recessions are cyclical and follow periods of strong growth, like the one we have recently enjoyed. It is likely another recession looms ahead. It could be mild or it could be more serious.
During the last recession, so many couples came to my office making decisions about their divorce to try and avoid financial hardships. Divorces during a recession can be different. Here are some thoughts based on my experiences.
Financial Strains Make Decisions for Divorce During a Recession More Difficult
Unemployment puts a tremendous strain on any marriage. Often it was the catalyst or the “final straw” and divorce was the result. Divorce itself is financial straining. Add a recession to the mix, and the circumstances were catastrophic for everyone.
First, homes and other real estate had lost value. It meant in many cases couple had negative equity – they owed more than their real estate was worth. Sometimes people could afford a buy out allowing them to keep the house if credit was available. But in the last recession, banks became stingy about lending. People simply could not get loans to refinance the house.
So there were many couples who made the decision to defer sales—meaning they co-owned their real estate until a later time. Divorcing couples might even choose to live together in the family home even after legally divorcing, because there was no other option without losing money on the sale.
If a couple couldn’t make any of these options work. the alternative was to sell the home in a bad market. When this was the last resort, there were many short sales.
Others suffered from foreclosures on their property. Often bankruptcy wasn’t far behind.
Kids Take A Financial Hit
Couples would disenroll their kids from private schools, or take them out of expensive extracurricular programs like sports or music to save costs.
Health insurance was a big deal. If a spouse lost work and lost health insurance coverage from their former employer, couples might end up bearing the cost on their own, putting strain on their family. Sometimes a spouse in the role of full-time parent was counting on healthcare coverage from the working spouse. But after a divorce during a recession, they would face being cut off.
People who divorced prior to the recession suddenly found themselves unable to pay their monthly support payments, and would fall behind. The ex-spouse and the kids suffered from losing the income. Tensions would flare and fights over money would affect co-parenting relationships.
Gray Divorce Offers Unique Financial Issues
Divorcing close to your retirement date introduces new considerations, especially in tough economic times.
For divorcing couples close to retirement, which started being referred to as “grey divorces,” their retirement accounts including IRAs and 401(k)s tanked right before they had to count on them for income. This is hard enough when married, but when a couple splits up in their 60s or 70s, the financial hit is devastating. There wasn’t enough time to recover before retiring.
It’s hard to determine whether divorce rates increased or decreased during the last recession. One theory is that financial strains on marriages caused more couples to divorce. But it’s also possible some people chose not to divorce during a recession because they just couldn’t afford it.
Impact of Impending Recession on Your Divorce
It’s my belief recession is inevitable, and not too far off. For couples contemplating divorce during tough financial times, economic decisions will affect many aspects of their lives during a divorce.
Divorce is hard enough on a family. Divorce affected by a financial recession is even worse. If divorce during a recession becomes inevitable, people can lessen the financial burden by pursuing mediation and other no-court options. These options give people the opportunity to divorce for less money. They also allows couples to find creative solutions when dividing financial assets, figuring out ways to pay for their children’s education, or preserving retirement funds.
