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October 26, 2021 Alternative Dispute Resolution

How to Prepare to go to Mediation on the Seemingly Unresolvable Case

By: Lisa Oeltgen

We have all had those cases where client information has been exchanged between counsel and proposals for settlement have gone back and forth to no avail.  Trial is looming ahead and there appears to be no amicable resolution in sight.  Often a well-meaning Judge will request that counsel and the parties attempt mediation prior to trial “just to see” if anything can possibly be resolved.  No doubt, many family law practitioners have found themselves in the position of being required to mediate the seemingly unresolvable case.  

No doubt, many family law practitioners have found themselves in the position of being required to mediate the seemingly unresolvable case.

No doubt, many family law practitioners have found themselves in the position of being required to mediate the seemingly unresolvable case.

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Despite the fact that the majority of complex dissolution matters often seemed destined to end in litigation, virtually every modern-day practitioner will state that they have been able to settle the seemingly impossible case.  How can an attorney best position their most difficult cases to be successful in a mediation setting?  Despite the complexity of many family dissolution matters, the answer to this inquiry follows some very basic and achievable steps.

First, counsel should be prepared to come to the table with full knowledge of their case.  This should include a complete understanding of all assets and debts to be divided; custody and other child-related issues still in contention; and a good, working knowledge of where there is give and take in these issues to support a reasonable settlement.  Nothing is more difficult for an experienced mediator than using the first half of a case’s allotted mediation time to reacquaint or even educate counsel on what is fodder for division and resolution in their case.  Preparing for mediation effectively will not only give counsel a jump on trial preparation (should the case not settle) but will additionally allow for a quick and efficient recitation of what issues are before the mediator for discussion. 

Second, counsel should strive to include appropriate experts in advance of mediation to assist in preparing business valuations, custodial and timesharing evaluations, and even financial asset breakdowns to ensure that counsel has the ability to mediate effectively in areas where the issues are more complex.  These experts are often well-versed in preparing calculations of value for business concerns, summary reports for contested custodial and timesharing matters, preliminary tax returns and asset gain or loss allocations to ensure that mediation can take place with actual numbers and potential recommendations in hand.  Not only will this information support settlement but will make clear to the other side that you are prepared and ready for trial, should the case remain unresolved.  Experts will often make themselves available by phone or email during a mediation to answer questions that arise or enlighten counsel and the parties as to how a particular issue is to be perceived in their field of expertise.  This collective effort is motivating and tends to have a synergistic effect on the overall mediation process.

Third, and perhaps most importantly, counsel should be acquainted as much as possible with their mediator and the mediator’s preferred style for making the mediation successful.  Mediation is often emotional and at times can move towards being confrontational as clients are required to partition all they hold dear.  Knowing your mediator and what strategies they employ to keep tempers and tension to a minimum is essential.  Does your mediator like parties to caucus with their counsel?  Are separate rooms necessary due to prior domestic abuse issues? Does your particular mediator request a summary from each counsel of the case issues prior to the mediation date? Understanding these questions about your mediator and their process will assist counsel in working in tandem with their mediator. 

Mediation is collaborative in nature and coming to the table ready to knowledgably advocate for your client and to support the mediator in their role will provide for the greatest chance of success. It is important to remember the gratification that comes from resolving the most complex of matters outside of the courtroom and being able to tell your client they remained in control of their outcome to the greatest extent possible.

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Lisa Oeltgen

Esq., Lexington, KY

Oeltgen & Yavelak, PLLC
ABA Section of Family Law Alternative Dispute Resolution Committee Vice-Chair