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December 2020 Tips by Fran – Mediator Communications

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Communicate Effectively with Parties

I don’t take a person yelling and making demands personally. I don’t focus on the exact words they use, but instead focus on the overall emotion they project. Oftentimes, after a mediation has concluded, parties apologize to me about the things they had said, or for their screaming and cussing. I usually assure them that I understand their pain and emotion, and that I don’t take it personally. If you as a mediator cannot build a Teflon wall around yourself, and let parties’ comments bounce off of you, then you won’t do well in family law mediations. You must learn not to react negatively to inappropriate comments by parties.

I once had an attorney tell me not to speak directly to his client. Instead of arguing, I said ok. I then asked the attorney lots of open ended questions regarding his client’s positions, and within minutes, his client was chiming in, wanting to speak. So I encourage mediators to ask lots of open ended questions so that parties can have the opportunity to broadly describe what their goals are and what they want accomplished.

Sometimes, to fully understand a party’s position, I have found it helpful to ask them to define the words they use, or have them explain what meaning certain words hold for them. For example, when someone in Texas says that they want “full custody,” I have to ask them to explain how they define this term. Because in Texas, we don’t use the term “full custody” in family law. It’s usually joint or sole managing conservatorship, which may differ from what the person using “full custody” actually thinks. Because there can be misunderstandings in ambiguous language, it’s helpful to communicate terms accurately, and have parties confirm their understanding of certain words.

I have learned to ask potentially volatile questions in a passive, non-threatening, and non-accusatory way. I usually preface tough questions with something like, “I am going to ask you something that could upset you, but I am not accusing you of anything, so just listen to my question, and recognize that I’m not saying you did this, and know I’m not trying to intimidate you.” I find that asking a volatile question in a non-threatening way means it will usually be well received. Many times the person responding starts to laugh and says, “I knew the other party was going to bring that up.”

Listen to Parties

Most people are not happy when they come to see a mediator. There is conflict, sometimes a very deep one. Usually at least one party feels wronged, and they want justice. They want to be heard. They want to feel that someone believes them. So listening becomes one of the most important things a mediator can do. I let parties talk, vent, and explain themselves. I only usually stop a mediation party while they are on their soapbox when they begin to repeat the same thing, or when time becomes an issue.

Commend Parties

Commending parties when they rise above the challenges they face with their opposition is a great way to build rapport. When I am dealing with a couple that puts their kids first and truly try to co-parent, I let them know that they are in the top 10% of people I deal with who do co-parenting differently. I let them know that there will be bumps in the road, but if they both always put their kids first and the adult needs-and-wants second, then their kids will thrive. I once had a man burst into tears when I told him that he was a “good dad,” because no one had ever said anything positive to him before. I now try to commend parents when they are trying to do the right thing. I don’t stop there, I often ask one party how I should approach the other party, or in what ways I can reach the other side. Many times the person will give me some wonderful ideas that truly help me communicate effectively with their opponent. Commending parties builds trust and helps facilitate resolutions to major disagreements.

I love mediating. First, it makes me appreciate my family. Second, it’s like a roller coaster ride – you never know what is around the next corner. It reminds me of that television show Kids say the Darndest Things – at mediation often people say the darndest things, and we should be ready to listen and respond.

Wrapping Up

In closing, I wish everyone a healthy and happy holiday season. May you and your family have the gift of much laughter and joy. I hope everyone is able to relax and enjoy the end to 2020. And may the new year bring us all good health, happiness, prosperity, abundance, and only good surprises in 2021.

November 29, 2020

2020 Peacebuilding Community Award for Volunteerism

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In spring 2020, when covid-19 shut everything down in Southeast Texas, including the ability to host in-person mediations, we went to work helping volunteer mediators at the Montgomery County Dispute Resolution Center. Our aim was to help them help their clients work on resolving pending legal disputes in a time of uncertainty. In those early days of court and mediation office closures, no one knew when courthouses would reopen, or how far civil and family cases would be backlogged. Many parties with pending custody, divorce, and civil claims were destined to spend their summer months in legal limbo unless they found a solution that facilitated virtual mediations.

Having learned about the predicament many volunteer mediators found themselves in at the DRC, we volunteered a couple days, and later contributed many Zoom hours, to train on the basics of online mediation to help mediators interested in connecting with parties remotely.

Receiving this award is an unexpected surprise and it humbles us to know our efforts were appreciated, and that many mediators were equipped to help their mediation clients attempt virtual settlements outside of courts.

IM’s work after the early days of lockdown has only grown. But as in the spring, mediators interested in getting help mediating online can still access helpful training videos on our Lawyers & Mediators Channel, as well as access helpful online mediator forms to help their mediations succeed.

Learn more about my mediation work by visiting my profile.

November 16, 2020

November 2020 Tips by Fran

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Mediator and InstantMediations.com Advisor Fran Brochstein, whose mediation experience spans decades, provides mediation tips to mediators and parties engaged in dispute resolution. She is based in Marble Falls, Texas and can mediate online with parties from anywhere. Contact her through her site Familylaw4u.com at Fran@Familylaw4you.com. If you have any suggestions for future columns, please feel free to contact Fran.

Control and Protect the Mediation Process

I had an interesting call recently. A gentleman was referred to me by another InstantMediations.com mediator. He basically told me what he wanted – a 5-minute mediation since he knew that they would never resolve their differences. I explained that it takes at least an hour for both sides to tell me “their story”. I informed him that I always allocate at least 4 hours for a mediation. I also told him that I had a very good success rate with people who swore that their case would never settle. When he realized that he could not dictate to me exactly how the mediation would work, he went elsewhere.

This conversation reminded me of the importance of being in control of the mediation process. You, as the mediator, are the boss. When I first started mediating, I was scared to hurt anyone’s feelings or sound authoritative, but now I just jump in and see where we go. I now assume that no one is ever going to tell me the whole truth or their true bottom line. I have learned that none of this matters as a mediator.

If you are new mediator, just jump in and get your feet wet. You will gradually develop your own style, your confidence will grow, and mediation will become less stressful for you. It will also become more fun. I encourage you to take advanced mediation training. I’ve been mediating over 15 years and I still take at least 15 hours a year in advanced mediation training.

General Tips

Don’t be shy to use your life experiences to help connect with parties. Even though I’ve been mediating for quite a while, because of my life experiences, I tell people that I’m a slow learner and that I’ve made every mistake they have made and probably more. I also let them know that I grew up in a dysfunctional family, and that I was a staff attorney at Houston Volunteer Lawyers for years.

When doing family law mediations, I remind parties that each family is different. Many mediations are similar, but I’ve never had the exact same mediation twice. Comfort parties to know that their issues are resolvable in a customized way.

I do not go forward without the parties signing my Agreement to Mediate. If they refuse to sign it, then the mediation stops. I’ve only had this happen a couple of times.

Tips for When Commencing the Mediation

I try to begin the mediation with some items that I think the parties can agree on. Then I move onto the harder topics. I always offer to do a partial mediated settlement agreement so that the parties only have a few items to bring before the judge if court is absolutely necessary. I think judges appreciate cases with limited issues, and it tends to save the parties money. Why waste a judge’s time if there is no disagreement on certain topics.

I usually start my family mediations saying that today will be a very hard day. We are going to do a lot of unpleasant work. I am probably going to shine a light into the dark corners of their lives. I warn them that I am a clean slate and I don’t know either party. And even if I know their lawyer, I am still an impartial trained professional. I make sure they understand that they will be the decision makers and I don’t twist their arms or make them settle. I also tell them that at the end of the day they will be exhausted and they will need to either just go for a walk, go to sleep, or perhaps enjoy an adult beverage. I let them know that a hard day at mediation is always better than an unnecessary and expensive day in court.

During the mediation, if someone seems stressed or upset, I will ask them if they want to proceed. I often allow people to take a brief break to center themselves and come back refreshed. I had one mediation where a man learned at the mediation that his youngest child was not his biological child. He began to cry so hard that I stopped the mediation and re-scheduled it. His attorney wanted to proceed, but there was no way that a man who could not talk or breath due to sobbing could make a rational decision.

Another time, I once had an attorney assure me that the case was going to settle. But his client was standing beside him with her arms crossed, shaking her head. I finally said to him that he needed to talk to his client because her body language clearly said she was not settling today. We re-scheduled the mediation for a later date and it settled then. The client appreciated that I did not rush or force her to engage in a settlement negotiation during the first session.

As the holidays approach, I find that many parties take the holidays very seriously. I always ask if their family celebrates Christmas Eve or Christmas Day. I discover some families go to church on New Year’s Eve. Some families have unique holiday traditions I’m familiar with. Some families have reunions that can often cause a lot of emotional pain. I encourage mediation parties to be flexible regarding family celebrations. For example, I like to remind parents in custody mediations that I’ve never heard a child complain about having 2 Christmas celebrations!

If you have any suggestions for future columns, I ask you to contact me at fran@familylaw4u.com.

In closing, as we near the end of a very interesting and challenging 2020, I wish for us all fun, laughter, joy and peace in the upcoming holiday season.

Instant Mediations Internet Bar Certificate Seal

October 8, 2020

October 2020 E-Mediation Certification Course

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The InstantMediations Academy is hosting an E-Mediation Certification Course with Daniel Rainey, of Holistic Solutions, Inc., which trains mediators in online mediations that leads to certification by InternetBar.org.

While October’s course is fully booked, you can register for November’s course here. Each course lasts 4 weeks, and consists of self-paced and live-sessions, and role plays. Zoom links for live sessions will arrive to students via email after enrollment. Members of InstantMediations Complete and InternetBar get discounts. So be sure to join these organizations to get your discount.

Dates

Thursday, October 8 (1PM EST): Online Orientation Meeting (1hour)
Thursday, October 15 (11AM EST): Online Session #1 (2 hours) ODR and Communication
Thursday, October 22 (2PM EST): Online Session #2 (2 hours) -Working Online and Choosing Platforms
Friday, October 23- Wednesday, October 28- Mediation Case Role Play
Thursday, October 29 (1PM EST): Online Session #3 (2 hours) Ethics and Review of Practice

October 5, 2020

October 2020 Tips by Fran: Domestic Violence in Mediations

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Mediator and InstantMediations.com Advisor Fran Brochstein, whose mediation experience spans decades, provides mediation tips to mediators and parties engaged in dispute resolution. She is based in Marble Falls, Texas and can mediate online with parties from anywhere. Contact her through her site Familylaw4u.com at Fran@Familylaw4you.com. If you have any suggestions for future columns, please feel free to contact Fran.

***October is National Domestic Violence Awareness Month (#DomesticViolenceAwareness). If you are a victim of domestic violence, please call The National Domestic Violence hotline now.***

The Major Problem of Domestic Violence in Mediations

In July 2020, I gave a Zoom talk to the Texas Association of Mediators on mediation and domestic violence (if you are a member of TAM, our monthly Zoom talks are included in your membership www.txmediator.org). I’m passionate about this topic because if not handled correctly, mediators can fail to help protect abuse victims when those victims show up at mediation sessions with their abusers.

First the numbers. Although there has been progress in acknowledging domestic violence exists, an average of 20 people are physically abused by intimate partners every minute. This equates to more than 10 million abuse victims annually. 1 in 3 women and 1 in 4 men have been physically abused by an intimate partner, and 1 in 5 women and 1 in 7 men have been severely physically abused by an intimate partner.

I never set out to handle domestic violence mediations. In my early mediation days I sometimes stumbled into mediations involving violence when a party admitted that it occurred. Or, I discovered the violence by noticing an abused person was showing signs of physical or emotional trauma. Oftentimes, parties or their attorneys never told me there was a protective order in place, leaving me to discover in the middle of a mediation that special precautions were necessary to ensure the safety of all participants. So I learned early on to ask about domestic violence and protective orders when I scheduled mediations.

I recognize today that many family law mediations begin with a joint session. But since I had several mediations where there was a protective order in place and no one warned me, I started putting the parties in separate rooms upon their arrival. I then asked each party if he or she felt comfortable to be in the same room with the other party. I cannot tell you how many times both men and women have expressed fear of being in the presence of the other party.

Address the Issue Right Away

If an attorney tells me of possible domestic violence, or I learn of it myself, I ask for permission to call their client to discuss their fears/concerns about appearing at mediation. I ask what I can do to make them feel safe. I usually let parties know they can take time to think about what they need and to call me back within 48 hours with their requests. By addressing their safety concerns up front, I believe I build credibility and trust before the mediation begins.

For example, a wife’s attorney warned me that her client was terrified of her professional boxer husband. I asked the attorney if I could call the wife and discuss how to make her feel safe at the mediation. The wife and I came up with several ideas: borrow a friend’s vehicle, wear a big floppy hat so that husband would not recognize her, and wait in her vehicle across the street so that she could observe husband arrive first to my office. After her husband was at my office, the wife would call me so I could watch her walk to my office. In this specific case, I made arrangements to use additional mediation space in a nearby office so that there was no way for the parties to ever see each other. At the end of the mediation session, I had her leave 15 minutes before him to help protect her safety. By addressing her concerns, this party was able to relax and feel “heard” at our mediation. We were able to resolve all issues in 2 sessions by shuttling between two offices. The entire time, the husband had no idea where his wife was physically located. I will note that the husband denied ever hitting his wife. But whether he did or not was irrelevant. The wife had expressed fear to me, and my addressing her concerns gained me credibility in her eyes, which helped facilitate an effective mediation.

Believe it or not, people don’t know if they are really in an abusive relationship because they’re used to their partner calling them crazy or making them feel like all the problems are their fault. For example, as an attorney, I once represented a successful woman in her divorce. My gut told me she was a victim of domestic violence. She denied it repeatedly. Toward the end of her case, when she felt comfortable, she admitted to me that her husband had used a door and other objects to hit her, but that since he never physically “touched” her, she did not consider it domestic violence. She was so embarrassed that she compartmentalized the abuse.

A Persistent Problem

Domestic violence is prevalent in every community, and it affects all people regardless of age, socio-economic status, sexual orientation, gender, race, ethnicity, or nationality. For example, I once was at a cocktail party in The Woodlands, Texas, a community with higher than average household incomes. A man learned that I was a family law attorney and somehow the subject of domestic violence came up. He said that there was no domestic violence in the Woodlands. I replied that unfortunately there was domestic violence in The Woodlands, but that the women could afford better make-up to hide the marks. He ended our conversation very quickly.

Men can be the victim of domestic violence too. For example, I once did a divorce mediation that successfully settled. At the end of our session, both attorneys and the wife left. The husband stayed behind and if he could remain with me for a while. He admitted that he was terrified of his wife and that she was sitting in her vehicle outside. He was afraid that she would either shoot him or run him over. I checked, yep, she was in her vehicle parked in a way that she could easily run him over before he reached his vehicle. She did not leave for over 45 minutes. When she arrived home, their son called his father and told him it was safe for him to leave.

Domestic violence is serious and letting it play a negative role in your parties’ mediation can be harmful. Ask the right questions and make sure you obtain all the necessary information you need to help protect parties.

Tips When Dealing With Dealing with Domestic Violence

Learn more at https://www.thehotline.org/

People who are in an abusive relationship will stay with their partner for a number of reasons:

Their self-esteem is totally destroyed, and they are made to feel they will never be able to find another person to be with.
The cycle of abuse, meaning the ‘honeymoon phase’ that follows physical and mental abuse, makes them believe their partner really is sorry and does love them.
It’s dangerous to leave. Women are 70 times more likely to be killed in the weeks after leaving their abusive partner than at any other time in the relationship, according to the Domestic Violence Intervention Program.
Statistics suggest that almost 5 percent of male homicide victims each year are killed by an intimate partner.
They feel personally responsible for their partner’s, or their own behavior. They are made to feel like everything that goes wrong is their fault.
They share a life. Marriages, children, homes, pets, and finances are big reasons victims of abuse feel they can’t leave.

Here are a few ways to know if you’re in an abusive relationship that you need to get out of:

Your partner has hit you, beat you, or strangled you in the past.
Your partner is possessive. They check up on you constantly wondering where you are; they get mad at you for hanging out with certain people or if you don’t do what they say.
Your partner is jealous. A small amount of jealousy is normal and healthy, however, if they accuse you of being unfaithful or isolate you from family or friends, that means the jealousy has gone too far.
Your partner puts you down. They attack your intelligence, looks, mental health, or capabilities. They blame you for all of their violent outbursts and tell you nobody else will want you if you leave.
Your partner threatens you or your family.
Your partner physically and sexually abuses you. If they EVER push, shove, or hit you, or make you have sex with them when you don’t want to, they are abusing you (even if it doesn’t happen all the time).

September 4, 2020

September 2020 Mediation Tips by Fran

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Mediator and InstantMediations.com Advisor Fran Brochstein, whose mediation experience spans decades, provides mediation tips to mediators and parties engaged in dispute resolution. She is based in Marble Falls, Texas and can mediate online with parties from anywhere. Contact her through her site Familylaw4you.com at Fran@Familylaw4you.com. If you have any suggestions for future columns, please feel free to contact Fran.

1. Make sure the people can stay longer than the anticipated time in case the mediation goes longer than anticipated.

Story – A modification case was resolved in 3 hours but we needed to write up and sign a Mediated Settlement Agreement. Suddenly both parties started to leave. Their child had an important program at school that evening. Neither party had told their lawyer that they had to leave early in order to drive to attend the event. Warn parties in advance that they should be prepared to remain during the entire length of the mediation process.

2. Whenever possible, get everyone to sign the Mediated Settlement Agreement at the time you meet.

Story – I did an evening mediation, everyone agreed to the MSA within 2 hours. I needed to write it up, then have the attorneys and their clients review it. Everyone was tired and wanted to go home. So the attorneys authorized me to write up the MSA and email it to them. They promised it would be signed and returned to me before noon the next day. Getting the MSA signed turned into a nightmare and took almost a week with numerous emails and phone calls to the attorneys to get everyone to sign.

3. Feed people at mediation. When I first began mediating, I bought “healthy” food but no one ate it. So I shifted to “junk” food. I realized that when people are under stress they want “comfort” food.

Story – I ordered BBQ sandwiches for an evening mediation. One attorney arrived late. He said he did not want the sandwich and seemed very grumpy and argumentative. I left it in the room and went to start with the Petitioner in another room. When I came back into Respondent’s room the mood was completely different. The attorney was a different person. We settled the case quickly. He admitted that his blood sugar had dropped and that the sandwich really helped. That $6 BBQ sandwich was worth every penny!

4. I often find it helpful to tell the parties that I’ve run out of ideas and solicit their help in coming up with ideas to resolve their case.

Several times I’ve told parties, “I’m about to declare an impasse, but before I do that, what else can I do to help you resolve your issues?” Sometimes cases seem to get settled at that point. When people realize that an impasse is about to be declared, they are finally willing to make a solid settlement offer in an effort to be done with the dispute.

5. I’m often surprised how often the opposing attorneys have not talked to each other.

Many times I take the attorneys outside away from their clients and just ask them where the case is and what is it going to take to resolve the outstanding issues.

Story – One time I had 2 very aggressive, successful male attorneys. We were stuck. So I took the 2 attorneys out and I just sat back and watched them access each other. When each realized that the other was competent and comfortable with going to trial, one attorney made a reasonable offer, and the case was resolved rather quickly.

6. I have found it very useful to have a brief meeting with the attorneys alone before even starting the mediation.

I often ask attorneys if there have been any offers made between the parties. Sometimes I ask about the best way to approach their client. I have found these pre-meetings make the mediation go much quicker.

Many times the attorneys have not talked to each other and this is their chance to talk in an informal atmosphere. They don’t have to “posture” for their clients. Plus, sometimes the attorneys give me a lot of insight into the personality of the parties or what the “real” issues is.

Sidenote: I’ve unfortunately had to introduce an attorney for the first time to his or her client at mediation. The 2 never interacted before because a paralegal did all the communication. The first time this happened at a mediation I was surprised. After all these years experiencing this I am no longer surprised.

August 1, 2020

August 2020 Mediation Tips by Fran

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Mediator and InstantMediations.com Advisor Fran Brochstein, whose mediation experience spans decades, provides mediation tips to mediators and parties engaged in dispute resolution. She is based in Marble Falls, Texas and can mediate online with parties from anywhere. Contact her through her site Familylaw4you.com at Fran@Familylaw4you.com. If you have any suggestions for future columns, please feel free to contact Fran.

1. As a mediator, you will never know what it takes to settle a case. And you don’t need to know.

I’ve learned that everyone (attorneys & parties) never tell me their true bottom line. So many times I’ve seen a case settle even though at the beginning of the mediation the person told me that they would never settle if they did not get “xx”. But at the end, the “xx” item gets discarded. So take every offer even if you think it won’t be accepted. You are there to facilitate discussion but recognize that you never truly know a person’s bottom line.

[...]

August 1, 2020

https://mailchi.mp/instantmediations.com/august2020newsletter

August 2020 Newsletter

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June 8, 2020

Book Authors Interview by Giuseppe Leone of VirtualMediationLab.com

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June 1, 2020

June 2020 Mediation Tips by Fran

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Mediator and InstantMediations.com Advisor Fran Brochstein, whose mediation experience spans decades, provides mediation tips to mediators and parties engaged in dispute resolution. She is based in Marble Falls, Texas and can mediate online with parties from anywhere. Contact her through her site Familylaw4you.com at Fran@Familylaw4you.com. If you have any suggestions for future columns, please feel free to contact Fran.

1. When scheduling or running a mediation, don’t be intimidated by a difficult lawyer.

Recently I saw a post on Facebook on an attorney/mediator group about mediating on-line versus in-person during this current Coronavirus health crisis. One of the attorneys insisted that the mediation must be in person only.

[...]

May 31, 2020

EXAMPLE ZOOM MEDIATION ON VISITATION / CONTACTS RIGHTS DURING COVID-19 & CORONAVIRUS (INTERNATIONAL)

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Professionals from the USA, Russia, UK, Spain and Poland gathered together to help other professionals and their clients experience online mediation in a family law case. The times of the pandemic affected family members all over the world. Some of the visitation orders/contact rights cannot happen or be enforced. Cross-border family relationships may encounter obstacles, necessitating mediation to help bring repair and resolution to difficult conflicts.

In this video you will see:

1. how a mediator can help parties reach compromise;

2. how easy and comforting the online mediation can be for the parties;

3. the role of an attorney – the party’s representative in mediation, bringing proposals, motivating the party and offering instant legal help;

4. how the ZOOM online mediation works, featuring the breakout rooms for caucus mediation;

5. and how the mediation agreement can be signed online, ending up the mediation process with success

0:23 MEDIATOR’S OPENING STATEMENT

8:06 PRESENTING THE EVIDENCE ONLINE IN MEDIATION BY SCREEN SHARING

16:36 MEDIATOR EXPLAINING THE BREAKOUT ROOMS to do the CAUCUS MEDIATION and the broadcast feature to communicate with the participants

17:28 PARTIES MOVED INTO MEDIATION IN CAUCUS ROOMS / BREAKOUT ROOMS

1:08:38 PARTIES RETURNED TO MEDIATE IN MAIN SESSION / MAIN ROOM

1:14:00 MEDIATOR PREPARING FIRST DRAFT OF MEDIATION AGREEMENT

1:14:50 PRESENTING THE DRAFT MEDIATION SETTLEMENT AGREEMENT and amending the agreement

1:23:37 MEDIATOR PRESENTING THE E-SIGNING PROCEDURE, electronic signing of the binding mediation settlement agreement

1:29:31 MEDIATOR’S CLOSING STATEMENT NOTE: due to the educational and awareness-bringing purposes of this video, some of the legal and jurisdictional issues were simplified.

May 26, 2020

E-signing Mediation Agreements & Best Practice Tips

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This article is being published after the recent integration of the e-signature tool for mediators into InstantMediation.com

After successfully negotiating a final settlement agreement between disputing parties, mediators find themselves needing to draft the settlement terms, and most of the time, needing to obtain the parties’ signatures beneath those terms.

In traditional in-person mediations, a mediator would typically type up the mediated terms, present the draft to the parties for review, and if the draft accurately captured the parties’ agreement, have them sign the agreement. The parties would then leave with their copy (sometimes containing the mediator’s signature as well), and all would be right with the world.

However, in the age of online mediations, mediators found themselves resorting to e-signature platforms such as DocuSign, HelloSign, and Adobe Sign, just to name a few. They did this for the ease and convenience it offered in securing electronic signatures from remote parties. They saw the flexibility it provided all participants to be able to sign with their finger on a smartphone screen instead of doing the 2005-era email-print-sign-scan-email dance, or worse, 1995-era faxing thing. And they were comforted by the growing legitimacy and legality e-signatures were afforded by businesses and courts–See the United States Electronic Signatures in Global and National Commerce Act (ESIGN), the Uniform Electronic Transactions Act (UETA), and the EU’s General Data Protection Regulation. All discussing e-signatures in some form or another, including the validity of an individual’s electronic signature, and the protections that come with it.

But the benefits utilizing e-signatures was not without its costs, some literally. Some e-signature platforms would charge $30 or more each month for an individual to send out electronic signature requests to clients. Other platforms would cut corners in protecting customers’ personal data. On the implementation side, some users failed to utilize quality controls in their workflows to ensure their e-signing clients received a copy of their signed document. Or they failed to destroy incomplete documents containing signatures of just one or some parties.

The following are some tips I would give to online mediators to protect the e-signing process and make sure their parties have a quality experience.

1. ALL SHOULD SIGN BEFORE THE MEDIATION SESSION ENDS – The mediation is not over until you the mediator declare an impasse or the parties have signed off on their agreement. Letting parties go prematurely with their promise that they will later sign the agreement is a recipe for disaster. Be sure to keep your Zoom meeting running until everyone has signed off on the agreement, and you have sent parties their final copy containing all e-signatures.

2. PREPARE A COMPLETED DOCUMENT – Make sure the document to be signed is a thoroughly completed representation of what the parties will actually review and sign. Unlike when using pen and paper in in-person mediation, you cannot just scratch out, or write in and initial changes in an electronic document once it’s sent out for review and e-signature. You should make sure you think through all the terms that need to be typed into the mediation agreement BEFORE sending it out to the parties. These terms should include the parties’ agreement terms, as well as the state laws or jurisdictional rules that may also need to be written into the document to give it legitimacy. In Texas for example, there are certain words regarding the binding nature of the mediation agreement that must be written conspicuously into the document itself for all parties to see and read before they sign. So be sure you have typed in all necessary information into the mediation agreement. It may help to keep a checklist on the side to help you remember all the topics that must make it into the final document before it’s sent out for signature.

3. BE VIGILANT AGAINST DURESS — A benefit of in-person mediations is the ability to see the party sign in front of you. With online or remote mediations, oftentimes parties are signing from a distance, and they may be in an environment where they are facing threats, coercion, or pressure. Mediation is a voluntary process (unless court-ordered), and people need to come to negotiated settlement agreements without fear of threats, and they should not sign under duress. Make sure to repeatedly ask parties if the agreement is THEIR agreement, if they will stand by THEIR agreement, and if they are entering into THEIR agreement voluntarily. If you sense something is wrong, listen to your gut. If you sense an individual is signing under duress from their location, especially if they are residing with the other signing party, then you as a mediator have an ethical decision to make, which includes possibly declaring an impasse and ending the mediation. I’m not talking about the “crying signer.” Not every waffling party who cannot make up their mind justifies canceling a mediation. But we are discussing clear cases of abuse, threats of harm, and other situations where it is plain to see a person is being coerced into a decision not their own. Be careful. Be vigilant. Try your best to make sure e-signers are signing from their location voluntarily and without duress.

4. DESTROY UNOFFICIAL COPIES – In the drafting process, it’s normal by the end of the mediation session to end up with loose pieces of information that never make it into the finalized signed document. But the last thing you need is having multiple conflicting pieces of information become post-mediation fodder for arguments between the parties. The parties should walk away with the same copy of their e-signed mediated settlement agreement, signed by all official parties to the mediation. Control the potential damage that might come out of post mediation disputes by making sure everyone relies on only one official copy. Destroy everything else to prevent confusion between the parties. This means also deleting unused, unsigned, and incomplete draft versions of mediation agreements sent to the parties for e-signature still inside your e-signature software. You should keep your own templates of course, but these should not contain other parties’ terms or information.

May 3, 2020

Instant Mediator Spotlight: Danielle Comeaux

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Danielle Comeaux, a mediator at DANIELLE CLARKE COMEAUX, PC, and early adopter of InstantMediations, agreed to sit down and share her experiences mediating cases online. Danielle hosts multiple online mediations each week during the Coronavirus pandemic, and has become a go-to mediator for getting cases settled. Her insightful and candid responses below may be of value to other online mediators expanding into online mediations.

Where do you work and what percentage of your practice is devoted to mediations?
- I work at Greenway Mediation Center in Houston, Texas. 100% of my practice is devoted to mediation. I do nothing else other than mediate full time.
How long have you been doing online mediations?
- I only recently started mediating online – courtesy of COVID-19. Prior to that, I was a die hard believer that face to face mediations was the only way to do it. I’m not sure, in the long run, my belief has change, but right now, I’m thankful for the alternative option as on-line mediation has allowed me to, overnight, convert entirely from face to face to on-line.
Before the Coronavirus pandemic, were you prepared to handle parties and attorneys online for mediations?
- No. In fact, I was a firm objector to on-line mediations. But, once it started to become obvious that we might not be able to accommodate face to face mediations because of the pandemic, I immediately sought out the best format to offer online mediations – and that was Zoom.
What does your online mediation desk look like when you are hosting a mediation online?
- I still go into my office every day. I have taken over one of our conference rooms. I have stacked some books upon which I place my laptop in order to have a better visual platform. I do have an Ipad I carry with me as well – some of my clients cannot use Zoom and need to attend via Webex, so I have a different device so I can accommodate different software running at the same time. I have since learned that I can run multiple on-line mediation software programs simultaneously on m laptop, and so I don’t need the Ipad as much now.
What is one challenge you have faced hosting online mediations through Zoom?
- The greatest challenge, because there are a few, is in the on-boarding – getting the lawyers and their clients into the meetings – it’s not something that people even knew about 8 weeks ago, and now everyone is having to figure this out. On the fly. I have a fantastic staff who is dedicated to help everyone join the meetings. From there, there are few challenges, if any. Probably the only other major challenge I have to face is the objection to doing it at all, and/or the medium to do it. I have a few clients that cannot use Zoom, so finding a way to utilize multiple software mediums at the same time has been an issue.
What is one surprising benefit you have experienced while hosting online mediations?
- The willingness of everyone to try it out! I didn’t lose a single mediation when we had to convert from face to face to online. I am truly amazed at everyone’s willingness to participate. And, even the old dogs can learn new tricks!
What is one tip you would give mediators who are new to online mediations?
- Be patient, both with yourself and with others. This is new to everyone, so patience is key for all. It always works out – just give everyone time.
What is one way the InstantMediations platform has helped you do your work as a mediator?
- It gave me an immediate referral source to lean on to learn – everyone has been incredibly helpful, and we all share our issues and exchange helpful hints – it’s a great resource. And, connecting with people all over the world – well that’s just cool as all get out!!
What is one interesting thing about you as a mediator few people in the public know?
- As a mediator, I’m not sure there is anything that sets me apart from others. Generally, I am licensed to practice in Texas and the United States Virgin Island, and I lived and practiced in the USVI for almost 6 years. There, I learned an entirely different culture and a way of life which gave me a tremendous outlook on different perspectives on cultures and ways of living.
Are there any developments you hope to see in the practice of online mediations as this trend continues?
- Honestly, for me, I’d like to see the return of face to face mediations because that’s what gives me the greatest joy as a mediator. With that said, I hope that now that we know we can successfully use technology to gather people electronically, we will have more “attendance” remotely when otherwise, parties would not intend to appear except by telephone.

May 3, 2020

May 2020 Mediation Tips by Fran

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Mediator and InstantMediations.com Advisor Fran Brochstein, whose mediation experience spans decades, provides mediation tips to mediators and parties engaged in dispute resolution. She is based in Marble Falls, Texas and can mediate online with parties from anywhere. Contact her through her site Familylaw4you.com at Fran@Familylaw4you.com. If you have any suggestions for future columns, please feel free to contact Fran.

After being an attorney almost 30 years, I have learned that I have never
had the exact same case twice. What I like about family law mediation is that it allows me to think outside the box and to be creative. Unlike when criminal defense lawyers see bad people at their best, in family law, we see good people at their worst.

My Experience and Tips

Hopefully I can share some stories so that you can avoid some of the
mistakes that I’ve made. What I learned is that if you follow the mediation
guidelines you were taught, you will stay out of the way and let the process
work. Keep your ego out of it. It takes some time but the mediation process
works if you just let the magic happen. Like making a delicious soup, sometimes it takes awhile for the ingredients to all come together. As the mediator, it’s important that you don’t stand in the way of things coming together. It might not be the way you think it should be, but it’s not your agreement.

It is your job to treat each person with dignity and respect. People want to
be heard. Many people are paralyzed by fear and they feel like they are the
only one in the world with their problems. As a mediator you must take the time to address their fears, worries, concerns, etc. But after you have heard the same thing three times, it’s time to cut it off gently but firmly. I find that
I cannot settle a case until each person has told me their story. I try to use
the same words that they used so that they feel heard.

I never get invested in the number of cases I settle. I’ve had many cases
settle 24-72 hours after mediation. As a mediator, I try to plant some seeds
and many times it takes awhile for the seeds to sprout.

You are in control – As the mediator, it’s YOUR mediation. Attorneys often
think that they are in control. I let them think they are in control, but I
usually let them say their peace and just move forward. I had one attorney who refused to let his client talk to me. So I just talked to the attorney and within a few minutes his client was chiming it. I could have argued with the attorney, but by simply going forward with the mediation, I moved the mediation process along.

Third Parties in Attendance

Third parties – I’ve had good luck with allowing 3rd parties attend
mediations. Sometimes the 3rd party is the actual decision maker or the
problem. Of course, at the beginning of the mediation, I state that they are
there as long as I feel that their input is productive. If I feel they are
negatively impacting the mediation, then I can ask them to leave

One positive story – I had a dad (the maternal grandfather) who came with
his adult daughter who was getting a divorce. The daughter had a young child, and the daughter was attending college. She and the child lived with her parents. For this dad, understanding how child support, custody, rights & duties, etc. were determined in Texas, was vital. By having him present, it
make the likelihood of her future co-parenting with her ex much easier.

One negative story – I had a nurse, a friend to a wife, show up half-way
through the mediation. She was argumentative and disagreed with everything the wife and her attorney had discussed. I had her leave the room. Toward the end of the mediation I brought the nurse back because she knowledgeable about the divorcing couple’s finances. Her attitude was much better after she sat in the waiting room for an hour. Upon her return, I made it clear that she was not a participant to the mediation, but merely present to assist her friend in making sure the finances were divided fairly. She was used to giving orders and I made it clear that she was not going to control the mediation. Only with that understanding was her presence effective at the mediation.

Working with Pro Se Parties

I have done many Pro Se (no attorney) mediations. I screen them carefully.
In the initial phone call and again at the beginning of the mediation, I make
it crystal clear what my role as their mediator is and what I’m not allowed to do. I developed a list of attorneys for them to use to do the post-mediation legal paperwork, or they are free to hire any attorney they want to do the paperwork.

One positive positive story – I have done mediations with couples worth
millions. Most have already talked to several board certified attorneys so they know how much their deposit and hourly rate will be if the attorney was retained. One man said that they decided to use me to resolve their issues and use the money saved in legal fees to pay for their child’s college fund. He told me that he was sure that I saved them around $100,000 in legal fees since just discovery of their vast assets would have cost a lot of money. Of course, I made sure that both spouses were knowledgeable about their finances and that neither thought the other was hiding assets. It goes to show, Pro Se parties can be extremely sensible and a joy to work with.

One negative story – A man called and wanted to mediate. I had a bad feeling but he called/texted and emailed so many times that I finally scheduled him. I had his wife arrive 30 minutes early and I put his wife in a separate room. She said that he had threatened her if she did not show up. She was terrified of him. I handed him back 100% of his money and asked him to leave. I told him that I was not the right mediator for him and that it would be a disservice to take his money. He argued with me but I made it all about him and his needs so eventually he left. I did not let his wife leave until 30 minutes after he left. This incident reminded me to trust my gut. When red flags are raised, heed them as warnings. Especially if the parties lack legal representation.

An Informative Website

I have a lot of people call me because I include so much free information on
my website. Even people with attorneys feel more comfortable after looking at my website and reading all the information I have on my page. At least
semi-annually I review my website.

For example, I have a short-hand rendition of the parental rights and duties
in Texas. Most people have never heard or seen these before. I added this page to my website so that people can look at it ahead of time and begin to become familiar with how Texas courts expect parents to behave as they co-parent their children.

When marketing yourself as a mediator to the public, make sure to provide
some free information to help parties prepare to meet you. It will save you a lot of time and energy in explaining concepts at the mediation.

May 3, 2020

https://mailchi.mp/instantmediations/may2020newsletter

May 2020 Newsletter

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April 23, 2020

Online-Mediation-Confirmation-Template-Letter

Online Mediation Confirmation Letter Template

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April 23, 2020

PREVIEW-How-to-Mediate-Online-by-InstantMediations.com-April-2020.

PREVIEW: How to Mediate Online

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A sample preview of the full online mediations E-book

December 30, 2019

Online Mediation in Hague Convention Cases

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The Hague Convention on Child Abduction 1980 (full name: Hague Convention on the Civil Aspects of International Child Abduction, concluded in the Hague on 25 October 1980) is an international treaty aiming at prohibiting relocating the children abroad without the other parent consent and if such a relocation already took place unlawfully – to return the child to the country the child was abducted from.

It is a very powerful tool, where the application of law may have very severe effects on everybody involved and in particular – on the children who are being a subject of the dispute in between their parents.

Therefore the mediation in such cases is of extreme importance, and it really is a special type of mediation. It needs to be quick, it needs to embrace the multicultural aspects and it needs to aim at creating the long-term arrangement between the parents to prevent children being abducted back and forth from one country to another.

What is the essential kit for mediation in the Hague abduction case?

Good lawyer with experience in both family law and the application of the Hague Convention;
Experienced mediator/s being able to proceed quickly and meticulously in your language (or – best case scenario – all the languages involved) and with delicacy on all the cross-border issues relating to child/children to be mediated,
A truly reliable on-line tool, enable to connect clients, lawyers and the mediator between the countries, continents, languages, time zones.

Please remember, that the mediation in the Hague Convention Cases is the only way to truly resolve the real issue – namely where the abducted child/children will live and what the visitation scheme (contacts, possession) will look like. The court proceedings themselves in the Hague Convention Cases will not solve those issues. They are designed only to establish the appropriate jurisdiction and are therefore of an auxiliary nature, in other words, they serve the purpose of establishing the country, in which the real process, handling the issues of the child’s residence and contacts, will be resolved on the merits.

In the mediation regarding the Hague Convention all the issues relating to the child will be resolved amicably and no other court proceedings will be necessary, which is cost effective, time saving, stress avoiding and – most important – focusing on the children and their welfare long-term.

The Divorce Mediation Movement – Some Thoughts

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Recently, on the Lawyer 2 Lawyer podcase hosted on the Legal Talk Network, Attorney Kelly Chang Rickert discuss the pros and cons of mediation over litigation in divorce proceedings, and the impact on the couple going forward.

The Divorce Mediation Movement

The Mediator Mediating Across Different Languages – Some Precautions

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Mediation is aimed at bringing agreement into a conflict situation. The conflict situation often results from communication barriers. One of the most obvious communication barriers language.

How is it possible then to bring agreement into a situation where more than one language is involved and where the communication barrier already exists?

The common sense allows us to see, that in any situation, whether business or private, before the conflict had arisen, there was at least a minimum level of understanding and agreement between the now-conflicted-parties.

So if you are in the mediation process involving different languages, in simple words you are trying to make parties involved communicating in the same language… And this is how you do it:

Think ahead: remember that apart from the necessity to engage the interpreters/translators in the mediation process, it might be wise to consider a mediator who can operate the other (or both!) languages that the parties speak.
Prepare yourself: remember that different languages often bring different cultural background issues with them. If you are mediating an intercultural case, make sure you prepare yourself about it in advance, e.g. speaking to someone from a particular cultural field or… having a mediator from this particular cultural background.
Make sure you agree on the language of the mediation, which involves also the mediation documents. Please note that these do not necessarily need to be in the official language of the country you are mediating in or the language of the court your case is to be heard in.
Ensure that everybody understands what is being said, read and drafted – the questions ensuring that all is being understood need to be repetitive yet polite. Please remember that a participant in the mediation might be too shy to declare voluntarily they do not understand a certain issue or phrase and ask for explanations about it. It will be easier for them to admit it, when asked a specific question by the mediator.
Throughout the entire process of mediation please ask open questions to check the common understanding, but make it in a way that they are not offensive or pay everybody’s attention to one of the parties’ difficulties. The questions will therefore need to relate to the language issues, mediation in general, a particular stage of the mediation process.

Having said all that, the experience shows, that:

– a mediation involving different languages will also engage more explanation than within the average mediation process.

– having a co-mediator in a case embracing different languages is a good solution giving the parties more certainty as to whether they follow the entire process properly.

But most of all, in any case regarding different languages and/or different cultures, please make sure that all the participants of the mediation process feel understood and respected.

Top 5 Ways to Ensure Online Mediation Stays Secure

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Now that the age of online mediations is upon us, internet security is on the top of everyone’s mind. Safety for mediation participants from threats such as online bullying or stalking is important. So are security of their information, including credit card information used to pay for mediation services, or digital data shared between the parties with their lawyers or mediators. Or what about ensuring confidentiality of the parties’ private talk. The meditation process is supposed to be a confidential one, free from the fear that what one says at a supposed confidential discussion will one day return to haunt them.

A rationale for confidentiality is simple: people will not enter frank discussions and make offers if those offers will later be used against them. The confidential nature of mediation helps parties know that they can speak freely to try to reach agreement and compromise on their differences.

In the traditional in-office mediation model, as long as the parties have 4 walls, and are all present for the meeting, controlling against spying, secret recordings, and uninvented friends, or family is somewhat easy. Once the mediation leaves the traditional walls of the mediator’s office, things become difficult. Virtual or remote mediations require different precautions to protect the integrity of the mediation process.

Some important assurances a mediator hosting a remote mediation should have are:

1. The mediation communications should be encrypted to guard against spies and hackers.

2. The parties should be reminded up to the commencement of the mediation of the strict confidentiality rules that exists, and the consequences for breaking them.

3. Technology preventing recording and screenshotting should be utilized whenever possible to prevent the unauthorized capture of the mediation process.

4. Parties who are remote on laptops or phones should use headphones with microphones when possible to make sure only they are participating in the listening of the discussions.

Mediators should work hard to ensure confidentiality, remembering that while technology offers wide opportunities to reach potential parties who wish to find non-court ways to resolve their legal disputes, the technology also invites unscrupulous individuals with the ability to breach confidential discussions. Mediators should use good technology, and common sense to ward off such threats.

Why to Mediate Online in a Family Case

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While it is mostly known amongst lawyers and their clients why mediation in general is being recommended, there are some features that make the mediation online in family cases really special.

So on top of what is usually given as examples why mediation in family cases is so reputable, namely that it is: cost effective, time effective, enables to ensure privacy and promotes made-to-measure solutions, please know that there are even more benefits if you do the same mediation online!

You might ask yourself how it is possible. All the above benefits are enough to give the mediation a try, but… Look at that!

mediation online is not only quick, it’s even quicker! just think that instead of travelling to a distant place, pay the costs of the journey, find a parking lot and pay for it, you do your mediation without driving, parking and all of it. See: if done online the mediation is easier to schedule, quicker to take place and saves energy and costs!
more efficient – choosing the mediator from amongst those, who not only possess the mediation skills but can also help manage the electronic means and electronic documents with electronic signature, helps process any documents, and the mediation agreement in particular, faster!
it enables you to handle the mediation in a friendly environment, in a place which you choose for yourself or agree with your lawyer. It can be a place which you already know and which does not intimidate you. You can even be accompanied by your favourite pet!
since family law issues are almost 100% sure to be the most important in your entire life, you are guaranteed not to be free from emotions. Also those negative or abrupt ones! Doing the mediation online gives you a chance not to suffer through those emotions so much for a few reasons: the one above in point 3, but also the fact that you are not being present face to face with the persons that get on your nerves… there is a glass/electronic media barrier between you… The communication and therefore resolving the complex matters is therefore easier and smoother.
it can help overcome the barrier of time and space. In today’s world plenty of family issues involve cross-border if not cross-continent aspects… To synchronise such a mediation takes time and effort. When done online all of it can be forgotten – the mediation just takes place as if you were in the same time zone, in the same climate and within the same territory.

Family case with its complexity and emotions involved is particularly appropriate to be settled on line. With an appropriate mediator and appropriate tool it will save you stress, sleepless nights and words which you would rather not hear nor say.

December 28, 2019