We believe it is critical that all of our clients are formally advised of the opportunity to resolve their case without litigation through the process of mediation.
Mediation is a voluntary process for arriving at an agreement. A mediator plays the role of bringing the two parties together to determine their own fate, rather than having a judge determine it. A mediator is not an arbitrator, and the mediator decides nothing. Statistics show that more than 80 percent of cases are settled. Unfortunately, many of those settlements take place after much time has passed and many dollars spent in attorney's fees. The mediation process is a mechanism that can cut the time and expenses of resolving your case. It is an ideal process for the risk adverse to participate in creative and sometimes unconventional solutions.
Once you have made the decision to mediate, the attorneys will begin preparing for your upcoming mediation in ways such as:
Information gathering. Each side will request information from the other. Neither side can make valid decisions without adequate information. Any information that is relevant to the case will be requested. Be prepared to receive numerous requests for detailed financial information, including requests for tax returns, charge account records, checking account records, etc. In addition, appraisals and inventories of personal property will be required. Please respond promptly and thoroughly to these requests. The consequence of failure to provide such information may be delay, postponement, or even cancellation of the mediation.
Position development. We will meet with you prior to the mediation. We will develop a financial statement for you and will be asking for asset and liability documentation if we take on a divorce case. In employment and personal injury cases, we will ask for information related to your damages. We will develop a "Mediation brief" that will contain reference materials for use by us and the mediator. We will track negotiations and initiate proposals and demands.
We believe it is essential to the success of the mediation that both sides provide each other with information before we get to the mediation. Your cooperation will assist us in setting the stage for a successful mediation.
Suggestions for Success
We want you to understand the mediation process so it can be used successfully. Listed below are some warnings, suggestions, and information:
As stated above, 80 percent of cases are successfully mediated, so remain optimistic. Those are good odds.
If you have been the victim of physical abuse, you may not be a good candidate for mediation. Discuss this with us.
Mediation can be arduous. Prepare yourself physically, mentally and spiritually. If the session continues past 5:00 p.m., which many do, fatigue can play a major role. Be prepared for that.
Be prepared to relive the difficulties of the marriage and/or adverse action. Be prepared to become angry. It will happen. The key is to keep it under control and refuse to become victimized by it.
Remain patient. Threats to leave the mediation are counterproductive.
Refrain from attacking the mediator or your own lawyer over the message they deliver to you.
Be creative. Be willing to look at ways to satisfy your spouse's needs. Allow your lawyer to "brainstorm" with you over possible solutions.
Be attentive. Negotiation can be extremely difficult to track. You must be very attentive to the proceedings.
Be thorough. Read the final agreement carefully. This is hard at the end of the day, but you should stay "in the game" to the end.
There are long periods of "down time." Bring reading material or work to do during these periods.
The mediation could last well into the night. Make arrangements to be involved until 8:00 p.m. or 9:00 p.m.
The mediation process creates pressure and fatigue. In one sense, this is good because it simulates the pressure and fatigue that arise at trial, so it facilitates settlement. On the other hand, your agreement must be knowingly and intelligently done, and of your own free will. So, if you find yourself getting to the point of feeling under unwanted pressure or fatigue, let us know. We will arrange for a break, nourishment, or an end to the session.
We understand your case is important.
Abraham Lincoln said, "No matter how closely you shave it, there are always two sides." He also admonished lawyers to settle cases, saying:
"Discourage litigation. Persuade your neighbors to compromise whenever you can. Point out to them how the nominal winner is often a real loser: in fees, expenses and waste of time. As a peacemaker, the lawyer has a superior opportunity of being a good man. There will still be business enough." Abraham Lincoln's Notes for a Law Lecture.
We understand how important your case is to you and to your family. We know how precious your child or your previous employment is/was to you. However, it is our job, as effective and competent counsel, to counsel you objectively to advise you of how things will go in court. It is also our role, as President Lincoln pointed out, to counsel you to compromise where appropriate to achieve resolution. In that regard, the courts have made it crystal clear that fathers are to be afforded "unfettered visitation" with children.
Our role is to counsel clients to avoid pursuing matters in court wherein a court setting-it will be impossible to demonstrate the concerns of a client, valid as they might be. When we do so, we are advising a client from the standpoint of how proof will look in court, not how we would like the result to be. As hard as it was, you did this right… and you saved a ton of trouble, hassle, and money.
If you have a scheduled mediation or are contemplating mediation assistance in your case, please contact our firm and call us today at 405-414-2222 and one of our experienced attorneys can assist you.