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Mediation: Post-Nup as Marriage Counseling and Marriage Preservation

{4:12 minutes to read} Sometimes couples who come to mediation are unsure if they really want to get divorced. They may not even know they are unsure.

There are all sorts of reasons for people in a rocky relationship to stay together. The two that stand out are kids and financial resources. Even for well-off couples, the cost of post-divorce life is often surprising.

Bickering parents, of course, can be a source of great strain for children and sometimes breaking up can bring a measure of relief to everyone. But the strains in a relationship may not be ones that require breaking up and many couples might ideally like to stay together permanently, or at least until the kids are grown—meaning after high school or college—when financial pressures are reduced.

Easier Said Than Done

{2:54 minutes to read} I recently came across an Employee Handbook for a large metropolitan hospital. The handbook is relatively short, only 24 pages. It gives all sorts of information about benefits, professional development, direct deposit of paychecks, equal opportunity, employee health services, etc. There is also a brief, two-paragraph section on Grievance Procedures, where it says:

The hospital strives to be consistent and fair in its labor relations and pursues the development of sound working relationships among supervisors and employees. Usually, issues resulting in a grievance are the result of a misunderstanding and can be resolved through improved communication between management and employees.

Appellate Mediations – Part 2

{3:30 minutes to read}

In my last blog, I discussed why mediating a case on appeal often makes sense, even to the party that has won Round 1. This time I want to focus on the potential risks and benefits that winners and losers face in the appeal process and how that affects their willingness to mediate.

Losers

If you lose on appeal, you really lose, and perhaps with greater consequences. No one wants to lose at the trial court level, but having an appellate court give it a stamp of approval can be even worse. The loser may then be living with the consequences for years to come. However, mediating the case before there is a decision on the appeal, can result in reducing damages for a defendant, obtaining some damages for a plaintiff, or designing a resolution where the outcome is more secure, slightly less onerous, and works in the long run.

Mediate an Appeal? Wait, Didn't Someone Already Win?

{3:12 minutes to read} One might think that mediating cases on appeal would be a losing proposition. After all, someone has already won. What’s the motivation for the winner to mediate? Oftentimes, plenty.

Cases on appeal arise in many different contexts: after a full trial, after a successful summary judgment motion or motion to dismiss, even, occasionally, on a discovery matter. The winning party typically has the upper hand. But this is usually only one aspect of the mediation. It turns out that parties who have won the first round are often still interested in resolving a matter, and mediation may be the easiest and most efficient way to do it.

Appeals, like many other aspects of our legal system, can be costly and time consuming. And the outcome isn’t guaranteed. Lower courts get reversed or judgments are modified. This can mean even more litigation. Both the winning and losing parties need to consider these factors. Even on appeal, parties often want to wrap things up, and mediating at this stage can provide an unusual opportunity to do that. The legal issues may be clearly framed, the litigants know their case very well, and the facts will often have been developed through discovery, motion submissions, or a trial.

Caucus Part 2

{4:06 minutes to read} My last blog addressed caucusing basics. I thought it might be interesting to expand the topic a bit to include some variations. As I previously wrote, non-divorce mediations are largely conducted through caucusing, with the mediator speaking to each side separately for much of the mediation. Divorce mediations typically are not conducted in this manner. But these are generalities; there is no one-size-fits-all.

Counsel-to-Counsel Caucus (aka Get Those Clients Outta Here!)

Sometimes it can be useful to send the attorneys on a walk without the intrusion of the mediator or the parties. Counsel may have a prior relationship that enables them to talk outside the hearing of their clients, in a way that permits cutting through some of the formalities or concerns they would have if clients were present. I have successfully used this approach even when the lawyers did not previously know each other but developed a rapport during the course of the mediation.

Caucusing Part 1

{3:36 minutes to read} Caucusing – speaking to parties separately outside the presence of each other – is a standard part of most mediations. It is essential in just about every commercial, employment, or personal injury matter. Parties often feel free to say things to the mediator that they do not want to say to the other side. And the mediator can say things to parties and their attorneys that could not be said in a joint session. It also allows the mediator to develop a strategy to help bring the parties positions closer together.

Whatever a party says in the caucus is confidential, unless they agree it can be disclosed. In multi-party matters, this can become a bit complicated but the basic rule is the same.

Mediation Timing Part 2 – Commercial, Corporate, Employment

{4:00 minutes to read} In my last blog about timing and mediation, I suggested that in divorce matters, there is a sweet spot of around 90-100 minutes for any single session. You can read that blog here: Part 1. This framework is largely irrelevant to other types of cases, such as:

Commercial;
Corporate;
Employment;
Personal injury.

In non-divorce matters, the parties and especially the attorneys expect to spend a significant amount of time during any one mediation session. There is more shuttle diplomacy, especially early on.

Mediation Timing Part 1 – Divorce Mediation

{3:30 minutes to read} What’s the right amount of time for a mediation? As Goldilocks might put it:

What’s too much
What’s too little
What’s just right?

As in many such matters, it depends. Some parties fade quickly, others are happy to go on for hours and hours, days and days. What works differs from case to case.

Overcoming Resistance Part 2

{Time to read: 3 1/2 minutes} During every mediation I try to establish a personal relationship with the parties and the attorneys. No, we don’t go out for drinks together. But I want to know more about the people other than the dispute that brought them before me. Often I ask simple questions. These may differ depending on the nature of the case. All mediations – employment, divorce, commercial, personal injury – provide opportunities for talking about more than just what’s in a complaint:

Overcoming Resistance

Resistance to mediation comes in many forms. There can be resistance to the entire process.

From attorneys:

Until relatively recently, many attorneys would not have participated in mediations in a meaningful way. They thought it would lead to a competitive disadvantage by forcing them to put their cards on the table prematurely. Sometimes lawyers have seen mediation as interfering with their income: the more a case goes on, the more I make.

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