The Mediation Option
Mediation offers a better alternative. The mediator is there to listen, to understand, to sympathize when a party needs to “tell the story,” as so often occurs in the aftermath of a bitter separation. When someone is needed to carry a proposal to the other side with candor, reassurance and support, the mediator can do it best. As an uninvolved, neutral intermediary, he or she carries none of the baggage that often accompanies a settlement offer from opposing counsel. The mediator is also the best choice when an outsider is needed to pick up a strained or aggressive proposal and give it a bath in the cold water of reality. For all these reasons and more, mediation is the domestic lawyer’s best dispute settlement tool. The author’s firm often steers a client’s case towards mediation and away from the ‘back and forth’ of exchanging letters or written settlement offers because mediation is frequently more cost effective for the client, in addition to the other reasons stated above.
Domestic mediation bears little resemblance to mediation in a traditional civil case, such as personal injury, commercial contracts, or worker’s compensation. Equitable distribution cases are often multi-level, complex disputes involving numerous issues. These “moving targets” can involve classification of the marital/community and separate property, putting a value of the assets in each category both at separation and at trial, and distributing them equally or unequally.
Child support and custody/visitation problems must be solved promptly and fairly with an eye to the future, since these parties will – through their children – continue to maintain some sort of relationship after the settlement is done, unlike most parties to a general civil dispute. Future enforcement problems and tax considerations put a premium on creative drafting of the alimony or spousal support provisions in the settlement instrument. A well-written settlement can last for decades and continue to return value to the parties who signed it.
For these reasons, it is important to approach family mediation much as one does in choosing a home to purchase. While there is certainly some value to driving around and checking out various options or neighborhoods, a better option would be to have a plan, an outline, and an organized approach for the transaction which is coordinated with a professional in the field. In the case of a domestic dispute, it means using a checklist.
Why a checklist? While initially a checklist may seem like a low-level approach at best, a deeper look reveals the benefits. One commentator points out that checklists are needed as humans are by nature fallible and inconstant. While discipline may overcome this to an extent, discipline is hard and not something you can always count on day in and day out, particularly with a full caseload, court appearances, client needs, and the business of a running a law practice also demanding a practitioner’s time and attention. Good checklists are efficient, easy to use, precise, and help people in some of the most difficult situations.
 Atul Gawande, The Checklist Manifesto: How to Get Things Right, Metropolitan Books, 2009.
 There are many writings about the stress of the legal profession. As just one example, see Karen Sloan, “Burnout. Depression. Red Flags Abound in Massachusetts Lawyer Study” Reuters. https://www.reuters.com/legal/litigation/burnout-depression-red-flags-abound-massachusetts-lawyer-study-2023-02-01/ Last accessed May 3, 2023.
 Some states have a requirement to mediate certain issues, such as equitable distribution in North Carolina. See Rules of the North Carolina Supreme Court Implementing Settlement Procedures in Equitable Distribution and Other Family Financial Cases, as adopted January 23, 2020.
 Assuming mediation is not required under state law and/or local rules.
 If faced with such a case in a jurisdiction where mediation is required, advise the mediator of this situation at the outset, come in prepared with a strong offer. Do not let the other side waste hour upon hour of your time and your client’s money – walk out if you must!