Early Stage Mediation Works Better

Anyone filing a domestic case in Washtenaw County has a 75% chance of receiving an order to mediate when the Clerk of the Court returns the summons. As we know, Judge O’Brien and Judge Wheeler both require mediation unless the parties have reached a settlement or there is domestic violence at a level that makes mediation unsafe for one party. For many parties, this means they should engage the services of a mediator soon, since the judicial attorneys will be pressing their attorneys at the pretrial for the name of the selected mediator.

What’s the rush, you may ask? After all, in divorce cases we have a six month cooling-off period in DM cases. Even DO cases will not be concluded by the court calendar within the mandatory 60-day waiting period. There are many good reasons to get the parties into mediation as soon as possible, preferably before a case is filed.

The parties’ anxiety is at an all-time high early in the case. A party wanting to leave the relationship usually worries about the impact the divorce or separation will have on their family, in particular their children, and the cost of the process in terms of loss of property, support and attorney fees. A party who is being left is often impacted by the added components of feeling rejected and having lost a lot of control over his or her personal live. In short, each party is under an enormous amount of stress that is probably getting in the way of making good decisions. The greater the anxiety, the more likely that the conflict will escalate.

While the parties generally are well acquainted with courts through television, they understand that courtrooms are akin to entering a foreign country, where they speak an incomprehensible language and engage in strange customs. In short, they are scary places where judges make lasting decisions that impact your family and your freedom to manage your finances. This prospect adds another layer of anxiety for your client.

What happens in mediation that is so important? First, the clients are made to feel in control. It starts with something as basic as being part of the selection process. I generally provide my clients with the names of 3-4 mediators from whom to choose. I sometimes suggest, particularly if they are the initiators of the process, to give the list of potential mediators to their spouse/partner and allow that person to select the mediator. My client feels in control because there is a limited list and the other party feels in control since he/she can select with whom they will work. This can be the parties’ first experience in cooperating after the decision to leave the relationship has been communicated.

It also lets them know that they will have a voice in the decision-making that will be honored and heard. In mediation, we agree to take no unilateral actions (such as emptying the bank accounts, cancelling credit cards, moving children or belongings from the home) without agreement of the parties. This avoids some of the defensive behaviors that parties often engage in during the process anticipating that if they don’t safeguard the asset the other side will take it. Learning from the mediator that there will be full disclosure and an opportunity to learn the family finances helps calm the parties.

Preparing for the first mediation session by reviewing (or learning) the family finances encourages the parties to start looking forward, instead of reliving the past. This also encourages a reality check by having the parties work through what limitations their finances place on their future behavior. While it may seem like a great plan to buy a second house in the same subdivision so that the children can ride their bicycles between Mom’s house and Dad’s house, few people can afford this luxury after the separation. Working through all the components of their separation permits people to grieve their losses and adjust to their future.

After an agreement is signed, the parties can agree which one will file the case and how the other will be served. When they get to court, all the important decisions will have been made, making the court process far less stressful. The parties can concentrate on implementing their agreement and parenting their children instead of fighting each other or attempting to retrieve what was lost during the process.

In contrast, waiting until just before the trial to mediate the case is much more difficult on the parties and their attorneys. By then, the parties have become entrenched in their respective stories. This makes getting them to consider alternative ways of resolving their case much more difficult, even with experienced attorneys representing them. The parties have been preparing for the trial as the means of finding solutions to their family problems and this permits the parties to transfer responsibility to the Judge for the ultimate decision-making. Late-stage mediation is their last chance to avoid the costly and frightening finality of receiving the Judge’s decision. Instead, the mediator strongly recommends the outcomes, rather than the parties choosing among a number of options and selecting the one best suited to their family. Late-stage mediation is often time-limited since there are trial deadlines that must be met if settlement is not reached. The parties lack the luxury to truly consider the consequences of their decisions.

There is danger for attorneys too. Working with clients who have not had the opportunity to take responsibility for their decisions makes it easier for them to blame their situation or the outcome on quality of the lawyering that you provided them. Parties who have the opportunity to explore options, consider consequences and make decisions that work for their families will accept responsibility for themselves and not blame their attorney if matters do not work out as they had hoped.

Domestic cases provide attorneys with great opportunities to assist their clients in finding ways to constructively manage their future. Attorneys can be the catalyst for positive change or instruments that perpetuate helplessness or victimhood. Encouraging your clients to participate in early stage mediation is very empowering for them. They will remember you as a major positive force in their lives.

Monika Holzer Sacks is a shareholder in Nichols, Sacks, Slank, Sendelbach & Buiteweg, P.C. of Ann Arbor where she mediates or represents domestic relations clients.