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Ways to Stay Calm, Cool and Collected on Mediation Day

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In an effort to create an open and informative dialogue about mediation for participants, Christine Murray and Lisa Arora have come together to create a unique 12-part blog series that combines their insights into a comprehensive view of mediation.

Christine Murray practices exclusively in the area of family law and has extensive experience in negotiation, mediation, and litigation. She has acted as counsel for parties at countless mediations and has taught family law as an Adjunct Professor at the Peter Allard School of Law (University of British Columbia).

Lisa Arora is an internationally recognized expert in the field of graphic facilitation and a comprehensive family mediator who uses visuals to enhance communication and foster productive, mutually beneficial agreements during mediation.

The intention of this series is to provide answers to questions that people considering family mediation often ask themselves while evaluating the legal, emotional, and practical aspects of working with a mediator versus other options available to families facing conflict, separation, or divorce.

Ways to Stay Calm, Cool and Collected on Mediation Day

Mediation day is approaching. It’s normal to be nervous. For many people it’s an emotional day, so it’s a good idea to ready yourself with some strategies to make sure you’re as prepared as possible to stay calm, cool and collected throughout the process. The more constructive your contributions to the discussion are, the greater likelihood you have of arriving at resolution.

Here are some tips for preparing to show up as your best self on mediation day:

Make Self-Care a High Priority

If you’re nervous leading up to mediation day, acknowledge your feelings and focus on practicing good self-care, especially in the 48 hours leading up to your mediation date. Eat properly, try to get a good night’s sleep, and make time for yourself the day before. For example, get some exercise in or do something you enjoy.

Be Well-Prepared Several Days Before

Eliminate other factors that could elevate your stress unnecessarily on mediation day. Ready any paperwork/info you need to bring to mediation and get organized several days in advance so you’re not running around last minute. Make sure you have childcare arranged beforehand and know the start and end times of the mediation, so you’re not worried about managing that commitment during the session.

Get in the Mediation Mindset

Remember that mediation is a collaborative discussion, which means when the other party speaks, your job is to respond with empathy and questions, not with an argument. The aim is to better understand where the other party is coming from; rest assured that the mediator will also give you the same opportunity to be understood by the other party.

Unlike an adversarial court process where there is a transcript and people are trying to convince the court who is right or wrong, mediation is a process where you both attempt to understand one another’s perspectives. You do not have to agree with what the other party says, but you do need to listen and try and understand what’s important to them in a solution and why.

Create Comfort

Bring anything you might need for comfort. Much like an athlete might wear a certain game jersey, bring the thing that gives you comfort (your lucky shoes, a picture of your dog … whatever it is). Just having that thing present may help you. If you smoke, bring your cigarettes.

When you arrive, the mediator should introduce you to anyone in the room you have not met (for example, perhaps you haven’t met the other party’s lawyer). If this gets missed, take the lead and introduce yourself to help set a comfortable collaborative tone.

If you have special requests to assist with your comfort (perhaps you don’t want to sit directly beside the other party, or you want to be escorted to and from the mediation room) let the mediator know your requests ahead of time. Remember, it’s the mediator’s job to keep the process safe and productive, so if you feel uncomfortable at any point, caucus with the mediator and let them know what you need.

Stay Attuned to Your Physical and Emotional State

Pay attention to physical signs (tightness in your stomach, shallow breathing, tense muscles, the urge to raise your voice, etc.) that indicate you’re becoming dysregulated. As soon as you notice you’ve been triggered, use a calming strategy to prevent yourself from escalating further. If you’re able to recognize in the early stages that you’re getting wound up, you’re better able to do something about it. Your goal is to avoid saying something that will worsen the conflict and that you can’t take back.

Here are some calming strategies:

  • Bring a notepad with you. If something triggers you, write it down rather than interrupting and verbalizing it. Once it’s on paper, think about how you can respond constructively vs. reacting emotionally before you address it. Consider whether it’s worth responding to at all. It can be powerful to not respond to bad behavior of the other party.
  • Ask for breaks when needed. Go outside, walk around, get some fresh air and take some deep breaths.
  • Request a caucus. Have a private conversation with your counsel and/or the mediator. Ask for suggestions on how to shift your mindset/the conversation, or to be more effective in communicating your point.

Come Down Gently

Plan something relaxing and low key for after your mediation. Try to avoid going from your session straight back to work, or having to rush off to another demanding appointment.

If you anticipate that mediation is going to be difficult for you emotionally, consider pre-booking an appointment with your counselor, or a debrief with your lawyer after your session. Just knowing you have a plan for afterwards can bring comfort, too.

Summary

No one’s perfect, but if you do the above things, you’ll give yourself the best possible advantage to stay calm cool and collected. This will avoid damaging relationships further and will increase your productivity in finding a resolution. And for those moments when you lose your focus, remember, the mediator is there to help you.

Important: Please note that this blog series is written in the context of providing information about family mediation and is not intended as legal advice. We recommend you seek legal counsel before making any major decisions about your personal legal circumstances, separation or divorce.

How is Multi-Tasking Done in a Visual Mediation?

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Let’s appreciate that mediators know a lot about multi-tasking. In role of mediator, you are simultaneously listening, identifying what type of a comment has been made (position, interest, possibility etc), choosing a response (from a wide range of possible communication interventions), formulating a next question, managing time, reading body language, sensing emotion, and assessing progress…phew! That’s a lot going on…and then throw note taking into the mix. It’s potential to overwhelm us might be part of why so many mediators keep their notes private during mediation.

One of the most important parts of becoming a Visual Mediator (a mediator who maps the notes publicly so parties can see and work with their information) is learning how to simultaneously listen to a conversation and synthesize the information while also writing and drawing on the map. Sure, it’s a talent that needs to be honed and practiced, but once you get it down, it’s an invaluable combination of skills that improves communication and helps parties come to a clearer understanding of their situation so they have a better shot at arriving at a resolution.

Here’s a few things to know about how the “juggling act” of visual mediation happens.

What you need to first understand is that you’re not a stenographer; it’s not your job to track and record every detail of the meeting. The idea is to go for the nuggets and get down concise, relevant points that provide a condensed overview of the discussion. Your job is to summarize and integrate the most beneficial parts of any exchange and present it back in a way that facilitates greater understanding, assists communication, and helps organize the information being generated. This is precisely the opportunity mediators miss when they take notes that only they can see during the mediation.

A visual mediator takes notes in a way that is public to the parties, which means the parties are watching you do this tremendous juggling act! A big part of becoming an effective Visual Mediator is developing your ability to make instantaneous decisions about what information to capture (and what not to capture) and knowing why you’re making those choices. While you are selecting information to display, the visual representation should be something that all parties agree is an accurate reflection of the conversation that is happening in the room.

Here are some questions to ask yourself to help choose what to capture from the conversation:

  • What types/layers of information am I hearing at this stage of the mediation?
  • What would be the purpose of writing down this particular comment?
  • Is this information past/present or future focused?
  • Would this bit of information help create understanding, support the development of an agreement?
  • Does this comment support the overall mediation goals?
  • Will I work any further with this information I’m considering to include on the map?

As was mentioned before, you want to capture the nuggets of the conversation, not everything that was said. The idea is to take down enough so that you don’t lose the meaning while making sure that what you capture is detailed enough that someone who wasn’t in the room could understand what was discussed. So, you want to be succinct, but not so much so that you lose context.

Combining listening and drawing skills to make meaning of what’s being said in a room is a juggling act where you have to balance between paying attention to the conversation (across 3 moments of time), filtering out the most important parts, and synthesizing the information to then writing it in a place where parties can see and use the information. While it might seem like a big leap to leave your private notepad behind and map things on a whiteboard, flip chart or giant piece of paper, it’s important to remember that there’s no “right” set of content to capture. With practice, you’ll develop your ability to make in-the-moment decisions that enable you to show the information that is most useful and to facilitate greater understanding by giving the parties an organized way to retain and process their information.

What else have you learned about multi-tasking in mediation that assists you in note-taking?

If you haven’t yet used visual techniques in your mediation but think it might be something you want to incorporate into your practice, you can download a free copy of my Visual Mediation Agenda Template and Step-by-Step Mediator’s Guide here and give it a try in your next session.

Preparing for Your Pre-Mediation Meeting

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In an effort to create an open and informative dialogue about mediation for participants, Christine Murray and Lisa Arora have come together to create a unique 12-part blog series that combines their insights into a comprehensive view of mediation.

Christine Murray practices exclusively in the area of family law and has extensive experience in negotiation, mediation, and litigation. She has acted as counsel for parties at countless mediations and has taught family law as an Adjunct Professor at the Peter Allard School of Law (University of British Columbia).

Lisa Arora is an internationally recognized expert in the field of graphic facilitation and a comprehensive family mediator who uses visuals to enhance communication and foster productive, mutually beneficial agreements during mediation.

The intention of this series is to provide answers to questions that people considering family mediation often ask themselves while evaluating the legal, emotional, and practical aspects of working with a mediator versus other options available to families facing conflict, separation, or divorce.

Preparing for Your Pre-Mediation Meeting

After your pre-mediation is scheduled, you might find yourself wondering how to prepare.

There are a few different areas that you can turn your mind to preparing for (legal, financial, and your mindset). Below are some tips (grouped into categories) to help you show up prepared for your pre-mediation meeting so you get the most from the session as well as ensuring that you are setting the framework for a successful mediation:

General:

  • Put the pre-mediation date and time in your calendar, find out details about parking and transportation and contact information (this might sound obvious but you likely have a lot on your mind);
  • Many mediators have an intake form they will ask you to complete in preparation for pre-mediation. Fill it out ahead of time so that the mediator can use the full session to learn about the complexities of your situation, and not spend meeting time gathering basic information.
  • Think about what’s important for the mediator to know. There may not be time or need to hear every single detail of your story, so what’s key? (Note: the mediator is a neutral person in the mediation so you do not need to convince the mediator that you are “right”.)
  • Compile a list of any questions you have and bring it with you.

Legal:

  • Before your pre-mediation, consult with a lawyer to educate yourself about your entitlements and responsibilities;
  • Review our blog post How to Get the Most Out of Independent Legal Advice Before & After Family Mediation, which details things to talk to a lawyer about.
  • If there are any legal proceedings already underway, send your documents to the mediator ahead of time, or bring them with you to the pre-mediation. Make the mediator aware of court orders or agreements that would impact the mediation process (i.e. timelines, contact orders, protection orders etc.).

Mindset:

  • Focus or re-focus your mindset on the purpose of the mediation process. If you have been in court proceedings or conflict, you want to shift gears/discourses from adversarial to constructive. Know what your goals are for mediation before your session, and get clear on what’s important to you in a resolution and why those things matter to you.
  • Think about the best alternative to a negotiated agreement (BATNA), the most likely alternative to a negotiated agreement (MLATNA), and the worst alternative to a negotiated agreement (WATNA) for BOTH sides. We’ve developed this template to help guide you.

Preparing yourself for a pre-mediation meeting and the mediation that will follow may seem onerous, but try to take it one step at a time. Get a good night’s sleep, be honest, and relax. It’s not an exam. These are just things to think about as you get yourself ready for the process. Please see our next post about ways to prepare for participating constructively in mediation

about preparing for your pre-mediation session, or if you want information on using visual mediation during the process to improve communication and clarity, contact us at http://lisaarora.com/contact/

Important: Please note that this blog series is written in the context of providing information about family mediation and is not intended as legal advice. We recommend you seek legal counsel before making any major decisions about your personal legal circumstances, separation or divorce.

What to Expect in a Pre-Mediation Meeting

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In an effort to create an open and informative dialogue about mediation for participants, Christine Murray and Lisa Arora have come together to create a unique 12-part blog series that combines their insights into a comprehensive view of mediation.

Christine Murray practices exclusively in the area of family law and has extensive experience in negotiation, mediation, and litigation. She has acted as counsel for parties at countless mediations and has taught family law as an Adjunct Professor at the Peter Allard School of Law (University of British Columbia).

Lisa Arora is an internationally recognized expert in the field of graphic facilitation and a comprehensive family mediator who uses visuals to enhance communication and foster productive, mutually beneficial agreements during mediation.

The intention of this series is to provide answers to questions that people considering family mediation often ask themselves while evaluating the legal, emotional, and practical aspects of working with a mediator versus other options available to families facing conflict, separation, or divorce.

What to Expect in a a Pre-Mediation Meeting

After you and your ex have chosen a mediator to work with, expect the mediator to schedule individual pre-mediation meetings. Typically, these meetings will be 1-2 hours long, and are expected to be confidential meetings (subject to confidentiality exceptions, such as when there is a duty to report when a child is in need of protection, and so forth. Your mediator will explain confidentiality provisions in detail). If you plan to have a lawyer accompany you to mediation, the lawyer may sometimes also attend the pre-mediation meeting.

While each mediator’s process will vary a little, some common reasons for holding a pre-mediation meeting are to:

  • Discuss the mediation process and get answers to your procedural questions.
  • Review and sign the Agreement to Mediate, which is the document that explains the overall details of how mediation works as a process, and outlines the terms you agree to abide by when entering mediation. The Agreement to Mediate must be signed by all parties before the start of mediation.
  • Review and sign a retainer and billing agreement, which explains the mediator’s rate, what tasks they will be paid for (and how parties will share in the cost), and any requirements about retainers. Note: some mediators require retainers, others do not, but may expect payment at the end of each session.
  • Allow the mediator to gather information about your situation. This is your chance to tell your story and share any details you think the mediator should know. Some mediators may take an organic approach to hearing your situation, others may have a list of questions to guide your telling of the story.
  • Make you and the other party equally aware of resources, supports and community services to consider.
  • Sometimes, mediators will ask you to do certain homework in preparation for the joint mediation session. For example, if your mediation involves finances, you may be asked to gather a list of assets and liabilities. Or, you might be asked to reflect on something particular such the vision you have for your child’s future and the values you wish to impart.
  • Possibly recommend that you receive legal advice before mediating.

Note that part of the mediator’s responsibility in pre-mediation is to determine whether mediation is an appropriate process for your situation. Motivation, emotional readiness, capability and safety are a few of many possible determining factors. So, as part of your conversation, the mediator will ask some questions to screen for family violence, drug use, mental health issues, access to weapons, etc. These questions can feel intrusive, but they are required by the laws that govern family mediation, and it’s important to answer honestly.

After pre-mediation meetings have been held with all parties, the mediator will be able to let you know if it is appropriate to proceed with mediation. If it turns out that mediation is not a good fit for your situation, they will provide you with a reason why, and discuss other alternatives you have for resolving your dispute.

Try not to feel nervous about your pre-mediation meeting and think of it as an opportunity to learn more about the process and ensure your concerns are heard. If you want some tips on preparing for your pre-mediation, see our next post, Preparing for Your Pre-Mediation Meeting.

If you have more questions about what to expect in a pre-mediation session, or if you want information on using visual mediation during the process to improve communication and clarity, contact us at http://lisaarora.com/contact/

Important: Please note that this blog series is written in the context of providing information about family mediation and is not intended as legal advice. We recommend you seek legal counsel before making any major decisions about your personal legal circumstances, separation or divorce.

How to Get the Most Out of Independent Legal Advice Before & After Family Mediation

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In an effort to create an open and informative dialogue about mediation for participants, Christine Murray and Lisa Arora have come together to create a unique 12-part blog series that combines their insights into a comprehensive view of mediation.

Christine Murray practices exclusively in the area of family law and has extensive experience in negotiation, mediation, and litigation. She has acted as counsel for parties at countless mediations and has taught family law as an Adjunct Professor at the Peter Allard School of Law (University of British Columbia).

Lisa Arora is an internationally recognized expert in the field of graphic facilitation and a comprehensive family mediator who uses visuals to enhance communication and foster productive, mutually beneficial agreements during mediation.

The intention of this series is to provide answers to questions that people considering family mediation often ask themselves while evaluating the legal, emotional, and practical aspects of working with a mediator versus other options available to families facing conflict, separation, or divorce.

How to Get the Most Out of Independent Legal Advice Before & After Family Mediation

Let’s imagine you have decided to participate in mediation without a lawyer present (this is very common).  It is strongly recommended that you get independent legal advice both before mediation and again after your mediation, prior to signing any agreement.

Here are some tips on:

  • choosing a lawyer that is a good fit for you;
  • working effectively with a lawyer; and
  • making the best use of your time during lawyer meetings – learning your rights and responsibilities;

Choosing a Lawyer to Advise You

  • Be sure to select a lawyer that is up to speed on family law and aware of the current legislation and case law – someone who practices in family law regularly;
  • Look for a lawyer who has experience working with clients in mediation and who is supportive of the process;
  • As you are only seeking limited legal advice, ensure you find a law firm that offers unbundled services. This means your lawyer will consult with you and perform certain tasks at an hourly rate on a pay-as-you-go basis. Generally, you will not have to pay a large retainer in the first meeting; (https://www.clicklaw.bc.ca/helpmap/service/1197)
  • Ask trusted friends or family for recommendations and read lawyer reviews.

What to Expect at Your Consultation With a Lawyer

When you call or e-mail to schedule your consultation, with a lawyer they will likely be very up front about their fees.  Get payment details in writing before you show up for your first meeting.

Many lawyers will have an intake questionnaire for you to fill out before your consultation. This is to help them understand the relevant background of your situation in advance so they can focus your in-person time on analyzing your case and advising you. It will also expedite the information gathering process so you have more time to ask questions.

If you’re asked to fill out a questionnaire, complete it to the best of your ability and return it promptly so your lawyer has time to review it before your meeting.

If your lawyer doesn’t use an intake questionnaire, here’s some information you can organize to be prepared for your meeting:

During the consultation, expect a two-way conversation. Your lawyer will have questions for you and you’re going to have questions for them. Throughout the discussion, your lawyer will help evaluate your options, provide you legal information and give you suggestions to help you prepare for your mediation.

Some Questions to Ask and Topics to Cover During Your Consultation

  • What’s the range of possible outcomes (best-middle-worst) for my situation based on the law?
  • What do you think is a reasonable outcome in terms of financial settlement?
  • If you have certain objectives (for example, keeping the family home), your lawyer will likely ask questions to help determine what is underlying this position (what is your interest – for example do you want to remain in the family home because you think it will increase in value and you will make money?).
  • Discuss multiple options for how you could meet your objectives and interests and various ways of structuring a settlement to meet your interests. This will provide you with more flexibility to negotiate (for example, are there ways to meet your interests without keeping the family home).
  • Figure out the main issues you want to focus on and which are more important for your situation. (For instance, consider the impact a pension will have on your future vs. dividing travel points. Decide which hills are not worth dying on.)
  • Are there specific matters you cannot deal with on your own (for example tax issues or properties held with third parties)? Consider what information/advice you need and which other professionals you should consult before going to mediation.
  • Ask your lawyer, based on their experience, what you should expect at mediation.
  • Learn what the strengths and weaknesses/risks in your case are.
  • Discuss the costs (financial and emotional) associated with each dispute resolution process you could use for resolving your case as well as the timeframe for each of those processes (i.e. mediation, court processes or arbitration etc.).

Keep in mind that you can book further consultations if you leave your first meeting feeling that you need more time to consider your options or need more information. If necessary or desired, you and your lawyer can meet multiple times to clarify questions and prepare for negotiations in mediation. Also, keep in mind that you can consult with your chosen lawyer on an as-needed basis during mediation (however you will need to pre-arrange this to ensure the lawyer is available during your mediation, or between a series of mediation sessions).

The goal of working with a lawyer before mediation is to get to a place where you feel knowledgeable and confident that you can negotiate a fair, durable agreement.

A good legal adviser can coach you in negotiating techniques, and help you think up creative solutions to propose.  After all, you don’t want to make agreements that are imbalanced or could be overturned in court years later. Depending on your confidence in the advice you receive, this may involve seeking the opinion of more than one family lawyer.

Consulting With a Lawyer After Mediation

After you’ve mediated, your mediator will most likely provide you with a summary of the agreements you reached during the process and a list of outstanding issues (if any remain unresolved). To protect yourself and your interests, make sure you seek independent legal advice before signing off on any agreements.

Mediation allows parties to be creative with the way they decide to resolve issues and construct settlement terms. If any terms of your agreement are unconventional or atypical, explain your reasoning and motivation for these arrangements up front so your lawyer doesn’t head down the path of advising you not to sign your agreement as a result. This will help your lawyer understand your thought process and interests in signing an agreement they could advise against.

Important! No matter what any lawyer advises, it’s always up to you to decide.

At your post-mediation consultation with your lawyer, expect them to:

  • Review the mediation summary to make sure it accurately reflects what you agreed to/wish the document to say.
  • Review parenting arrangements to consider the best interest of the child(ren).
  • Inspect financial agreements to ensure they fall within the reasonable range. They will also double check that valuation dates, deductions, exclusions and any equalization calculations are correct, and that any backup documentation supports the figures.
  • Identify and explain where agreements depart from the scheme of a Family Law Act, and make sure you have a sound, valid reason for those choices.
  • Help you execute your separation agreement and finalize concluding steps. This may mean drawing up a separation agreement or consent order for both parties to sign, or applying for a divorce.

By working with a lawyer before and after mediation, you can gain a clearer understanding of what the mediation process involves, and learn how to ensure you get the best possible outcome.

If you have more questions about how to decide whether you should secure legal counsel for your mediation, or if you want information on visual mediation, contact us at http://lisaarora.com/contact/

Important: Please note that this blog series is written in the context of providing information about family mediation and is not intended as legal advice. We recommend you seek legal counsel before making any major decisions about your personal legal circumstances, separation or divorce.

Do I Need to Bring a Lawyer to Mediation?

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In an effort to create an open and informative dialogue about mediation for participants, Christine Murray and Lisa Arora have come together to create a unique 12-part blog series that combines their insights into a comprehensive view of mediation.

Christine Murray practices exclusively in the area of family law and has extensive experience in negotiation, mediation, and litigation. She has acted as counsel for parties at countless mediations and has taught family law as an Adjunct Professor at the Peter Allard School of Law (University of British Columbia).

Lisa Arora is an internationally recognized expert in the field of graphic facilitation and a comprehensive family mediator who uses visuals to enhance communication and foster productive, mutually beneficial agreements during mediation.

The intention of this series is to provide answers to questions that people considering family mediation often ask themselves while evaluating the legal, emotional, and practical aspects of working with a mediator versus other options available to families facing conflict, separation, or divorce.

Do I Need to Bring a Lawyer to Mediation?

As you start to work through your divorce or separation in mediation, you might examine your option to also work with a lawyer during the process.

First of all, is it necessary or acceptable to hire a lawyer when you’re already working with a mediator (and is it a good idea)? If so, can your lawyer participate directly in your mediation sessions? What if you hire a lawyer, but prefer to attend mediation sessions without them present?

The short answer is … IT’S UP TO YOU. Certainly lawyers may be present with parties in a mediation, however, it’s not a requirement that you have one there. You and the other party both get to decide for yourselves whether to work with a lawyer, and if you do, you will be able to decide how involved their role will be.

Note: Sometimes other support people such as family members or other professionals can also be present during a mediation. These people have a limited role in the sessions, and all parties must consent to their participation.

Basically, there are three ways parties conduct mediation with lawyer involvement:

  1. Sometimes both parties bring lawyers.
  2. Other times, only one party brings a lawyer.
  3. And many times, both parties mediate without lawyers present (but seek legal advice – see below).

In instances where only one party has legal representation, a mediator will consider whether this factor creates a power imbalance and will design the mediation process with that factor in mind.

At minimum, whether you bring a lawyer to mediation or not, it is always recommended that both parties seek independent legal advice to educate themselves about their rights and responsibilities. This should be done both before starting mediation, and again afterwards, prior to signing any agreement.

With a spectrum of possible degrees of lawyer involvement, how do you decide what’s right for you?

Every situation is different, and there are lots of factors to consider. You’ll have to consider your own particular circumstances and several factors. Rather than basing your choice on any one factor, consider them all together. In your circumstance, which factor(s) carry the most weight?

  • Finances – Can you afford to retain a lawyer for the mediation as well as pay your share for a mediator? Hourly fees for mediators and lawyers can vary significantly. Typically, fees for your lawyer are your responsibility, and mediator costs are split equally between parties. How can you best allocate your financial resources in the bigger picture of your divorce process? Are there arrangements that need to be made, such as an interim distribution of property, that would allow you to afford legal counsel
  • Complexity of issues to resolve – How complex is your situation? How well do you know your responsibilities and entitlements? What are the issues? Are there some matters such as parenting planning that you feel comfortable handling on your own? Are there others, like spousal support or excluded property that you would be more comfortable deciding with a lawyer present? How confident are you in your ability to advocate for yourself?
  • Collaboration – How willing of a participant is the other party? How motivated are they to come to an agreement through mediation? What is the other person’s conflict style? How will you feel if he/she brings a lawyer and you do not?

If you make the decision to hire a lawyer, ask yourself these questions about your representation:

  • How collaborative is your lawyer?
  • Is your attorney more settlement-focused, or do they promote going to court/litigation?
  • What is your attorney’s view of mediation?
  • How dedicated is your lawyer to you getting a good result outside of court?
  • Does your lawyer approach mediation as only a stopover or discovery opportunity on the way to court?

One way to think through your decision is to ask your lawyer about the benefits of settling in mediation. If they respond with something like, “Well, avoiding a 5-day trial can save you a whole lot of money and stress. If you settle, maybe you can use the money to treat the kids with a Disneyland vacation instead,” you’ll know they’re putting your interests first.

Note: It’s important to remember that the mediator can’t advocate for you, and while they can share legal information, they cannot provide legal advice. That can only come from a licensed attorney.

If you’re still not sure about your decision, here are some observations we’ve made that might be helpful to think about.

Without a lawyer in mediation some benefits include:

  • You have one less immediate cost;
  • It’s easier to schedule mediation dates because there are fewer parties to coordinate;
  • The mediation generally takes on a less formal tone;
  • Working with fewer parties allows more direct communication and less opportunity for misunderstanding;
  • If you and your spouse can communicate directly and work things out in mediation, you have an opportunity to strengthen communication between the two of you. This can be a confidence builder because you’ll have the experience to draw on when working things out in future;
  • You might achieve more flexibility in problem solving by taking less of a legal stance on your situation;
  • You can still gain access to legal advice during the process. For example, you might consult with a lawyer between multiple mediation sessions, you and the other party might agree on matters subject to legal advice, or you may reserve certain issues to be discussed only with an attorney present.
  • You still have the power to adjourn your mediation and secure legal counsel if you decide you’re in over your head (Note: it is imperative that you do this before signing agreements);
  • If you are not successful in mediation, the process will have been conducted without prejudice, which means it can’t be used in court. At that point, you can decide on taking next steps with or without the help of a lawyer.

With a lawyer in mediation some benefits include:

  • You have someone to accompany you to mediation sessions, likely who will have experience from participating in many previous mediations;
  • There is another person who can help set a positive and productive tone in the mediation;
  • You have someone to help advocate for you;
  • Your legal counsel will be responsible for bringing and organizing all of your documents;
  • There is someone to help you keep your emotions in check during a charged situation;
  • You have an objective person who can hold the bigger picture in mind and depersonalize things during the mediation process;
  • Your counsel can help you feel safe and supported;
  • There is instant access to legal information and advice about matters you might not be aware of (for example, tax implications);
  • If you work with an experienced lawyer, they will have many previous situations they can draw from to help can suggest creative solutions;
  • You have someone who can provide a point of view on the mediator’s performance;
  • Your legal counsel will help you evaluate offers and proposals that are put forward for you to consider;
  • There is someone who can help ensure that the agreements you come to are properly recorded;
  • It is possible to limit your attorney’s role to participate in only one portion of the mediation.
  • You have someone who’s staying up to speed on your situation and can, if you fail to resolve all your issues in mediation, give you advice on what steps to take next;
  • You can potentially be more efficient in coming to a resolution as you do not have to break to get legal advice and re-schedule the mediation for a separate session.

Take care to realize that while there can be lots of value in bringing a lawyer to mediation, they could have an inherent conflict of interest when it comes to making a settlement. Unfortunately, some lawyers may see a successful mediation as lost revenue in trial. Others see successful mediation as an opportunity to help your family reach a positive and cost effective resolution while making their time available to help other clients.

It may feel daunting to make the decision about how much to involve a lawyer in your mediation, but know that if you later feel you want to change your approach, you can. There is the possibility to re-negotiate the parties to your mediation partway through the process. Because mediation is voluntary—as long as you have not signed off on any agreements—you can stop the process at anytime to re-group and figure out what next steps you want to take.

If you have more questions about how to decide whether you should secure legal counsel for your mediation, or if you want information on visual mediation, contact us at http://lisaarora.com/contact/

Important: Please note that this blog series is written in the context of providing information about family mediation and is not intended as legal advice. We recommend you seek legal counsel before making any major decisions about your personal legal circumstances, separation or divorce.