May 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.
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.