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June 2020 Mediation Tips by Fran

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.

But please know: you do not have to follow this view.

My advice is to remember, that YOU the mediator are in control of the mediation process.

If you are not comfortable mediating in person then don’t do it. Don’t be intimidated to do a face-to-face mediation, especially if you have health concerns.

As a person who has had pneumonia more than once – it’s not worth the money or your health.

And a real life example to this:

Several years ago in my office an attorney spent 30 minutes telling me all the reasons the case would never settle. He started to pack his suitcase to leave. I told him that he’d had his say and now it was his turn to relax, eat dinner, and let me do my job as a mediator. I had the entire case settled in less than 2 hours.

2. Sometimes you are just not the right mediator for a case.

You do not have to take up every mediation. I have actually referred a mediation to another mediator when I felt that it was just not a good fit for me.

Recognize your strengths and weaknesses.

If an attorney asks me for names of other mediators in their part of town, I always give them 2-3 other names of mediators that I know and respect.

Story – One time, an attorney wanted to schedule a mediation with me. She warned me that her opposition, a man, did not respect women and he thought all women were beneath him. I suggested that she use a strong male mediator and I suggested a couple. She thanked me and called me to let me know that the case settled at mediation. After that, she often used me as a mediator.

3. If you are the mediator – remember NOT to wear an attorney hat!

You need to facilitate negotiation and discussion. I might do some “reality testing”, but I don’t make decisions for the parties – even when I desperately want to do so!

Story – I once did a case with a dad (and new his wife) and mom. Mom’s attorney was elderly and probably needed to retire. I had to step out of Mom’s room several times because Mom’s attorney was giving her out-of-date legal advice. I had to keep reminding myself that I was the mediator & NOT her attorney. Mom had been a drug user and out of her children’s lives for a couple of years. Mom was now employed with stable housing & clean. At the end, Mom received some visitation with the children – but no holidays. She hugged me and thanked me for my work. She said that step-mom had raised their children while she was 100% absent and that step-mom earned Mother’s Day and other holidays. It was a difficult mediation for me BUT I learned that being a mediator is very different than being an attorney.

4. Encourage people to bring comforting things, like oxygen, meds, sweater, special food, etc.

Story – when I was still representing clients, during a mediation my client turned white, began to sweat, and looked like she was going to pass out. She told me that she had not taken her medications that morning since she did not believe that we’d really be there for 4 hours. I learned to always tell people that we might be at mediation for up to 12 hours, so they needed to bring whatever they might need if we stayed longer than anticipated.

Another time a man decided to quit smoking the day of mediation. I eventually sent him to the convenience store to buy a pack of cigarettes. Mediation day is probably not the best day to stop smoking and potentially react negatively.

5. You just never know what will happen at mediation.

Just when I think that I’ve heard or seen it all, something new happens. People say and do the weirdest things. Remember to anticipate the worst and hope for the best. Just remember it’s the parties mediation and that you are there to assist them in resolving their issues. BUT it’s their case so don’t take it home with you. Things just sometimes get weird. When it happens, leave it at the mediation session.