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  • Steve Sheldon, Judge (Ret)

Suggestions to Make Mediation More Productive

Updated: Oct 15, 2021

It is important in any mediation to realistically evaluate whether the “deal on the table” fairly approximates your alternative (usually going to trial). It is also important to work at not becoming frustrated and shutdown and to constructively continue to take part in the process, focused on your goal of settling the case. For example, rather than focusing on only one aspect of “the deal” you want and ignoring further exploration of possible solutions when that aspect is not met, try to focus on the general negotiations and explore possible alternative strategies or goals which may assist you in continuing to move toward a successful mediation and getting your case resolved.

Mediating child-related issues can be the most challenging and emotional issues the parties may deal with in trying to avoid a trial. The greatest opportunity for creative problem solving and addressing child-related issues presents itself in mediation. The parties can explore options for counseling, supervision, communication options, extra-curricular participation, religious issues, etc., with considerably more leeway and time than will be afforded at trial or by the judge.

In a case involving allocation of assets and debts, it will help the mediator’s resolution of issues to be able to quickly identify accounts and balances (in the event the mediator takes a “global” approach to dividing assets and off-setting assets against debts). A helpful way to identify bank accts, investment accounts, or debts for the mediator is to identify accounts by the last 4 digits of the account and give the account balance (usually as of the date of service of the divorce petition). With that information, the Mediator will be able to ensure that both sides are talking about the same accounts and using the same “math” to calculate who is getting what in the “deal.”

Without taking the time before mediation to specifically identify accounts, considerable time may be spent during the mediation just trying to sort out what everyone is talking about when trying to divide bank/retirement accounts or offsetting assets against debts. Taking the time before mediation to do the tedious footwork to get the account information organized will save time, expedite discussions and help the mediator focus everyone’s attention on the “global” resolution of the case.

If your case involves an asset which requires “valuation” ensure that you have obtained a “valuation” prior to the mediation. It will generally be useful in narrowing the valuation issue(s) if you can communicate with the other side to reach some agreement on the “valuation,” whether it is a business, property or other asset prior to the mediation. Valuation of businesses, marital residences, other property, stock options, intangible assets or other unusual assets present their own challenges and are most efficiently dealt with in a mediation when there is at least a possibility the parties may have some agreement on the “ranges” of value. Without some agreement on difficult-to-value assets, you may have to settle for resolution of as many issues as possible and on those difficult “valuation” assets defining or limiting the issues about them that you want to present at trial.

Keep in mind that mediation is a voluntary process that allows exploration of potentially more creative, constructive alternatives than what a court will consider if the case goes to trial. However, it can be extremely difficult for the mediator to have a constructive, helpful dialogue about potential trial outcomes if you have become entrenched in an unrealistic or too-hopeful belief in the outcome if the case goes to trial.

If you are preparing a “mediation” memo for the Mediator, again, take a realistic approach to the issues and the resolution of them, acknowledge any weaknesses in your case or particular issues. Approaching the memo like a “closing argument” for the jury does not help the mediator and may make the Mediator’s job more difficult. The memo is not a closing argument; if you are trying to settle the case, you may want to consider that your audience is a person who is going to help you try to settle the case rather than go to trial. If you’ve painted a “golden-ring” picture that the Mediator cannot help you achieve with the other side, you will probably be spending money and emotional energy without a successful outcome, with the risk you have convinced a client who will be resistant to letting go of the “golden-ring.”

In discussing issues in your memo and during the mediation, it is helpful to identify and discuss all of the factors the court will evaluate in making a decision on a particular issue. For example, if spousal support is an issue, identifying all of the factors the court will likely evaluate in making a decision about the issue is important. To illustrate, the statute discussing spousal support is, of course, the starting point for the discussion but how the statute has been interpreted by case law is also important. This point is illustrated by case law in Arizona discussing, for example: standard of living during the marriage, “nest egg,” and passive-income from investments. This last issue can take on, perhaps, unexpected importance if a litigant may receive a substantial amount of non-liquid assets in a divorce. The case of Deatherage v Deatherage, 140 Ariz. 317 (1984) suggests the trial court has the discretion (if not the obligation) to consider income capable of being earned/produced from non-liquid, property in deciding the issue of spousal support.

While it would certainly be appropriate to argue limiting the amount of “income” to be attributed to such property in Arizona, if you want the mediator to help you settle the case you probably need to: 1. concede that attributing income to such property is something the Court might do 2. factor that possibility into your discussion with the mediator and 3. factor it into a possible “range” of reasonably likely outcomes on the issue of spousal support you think the mediator should discuss with the other side. Furthermore, ignoring factors such as standard of living during the marriage, “nest egg” arguments or passive-income attribution in Arizona could simply create the potential for time consuming discussions during the mediation, including “education” of your client-not always the best impression for a client if they hear it for the first time from the mediator. Other similar “tripping-points” can be: calculation of child support (attributing more than the other parent’s income from “full-time” employment, i.e. over-time, second job, etc.); the basis for claiming sole, legal decision-making, parenting time (ignoring factors that adversely impact such a request, e.g. drugs, dv, alcohol, mental health issues); unrealistic valuation of assets or distribution of debt; waste and just about any other issue that is contested by the other side.

The important point I want to emphasize is, again, be realistic and address weaknesses in your case—it is a confidential memo, it is not a jury argument. Giving the Mediator a good grasp of the issue(s) will help resolve the case. . .if there are aspects of the case you want the Mediator to keep confidential from the other side simply make that request of the mediator in your memo or during your discussions with the mediator-don’t waste time waiting for the mediator to be made aware of weaknesses in your case by the other side and putting the mediator in the position of making suggestions to the other side which turn out not to be supported and which the mediator would not have made if the mediator had a better understanding of the case.

The goal in mediation is, of course, to resolve the entire case. In some cases, however, if unable to achieve a complete or “global” settlement, it may be possible to agree on some issues which will result in time-savings at trial, reduced discovery expense, and more time to spend at trial on limited, important issues for the Judge’s consideration, i.e. an important consideration when the issue(s) reserved for trial are complex financial or valuation issues. It is something to think about as part of your “best alternative to a negotiated settlement” (BATNA) before starting the mediation, i.e., if I can’t settle the whole thing, do I want to try to settle some of it so there will be less to deal with at trial?

When you have spent time working through to a resolution of the issues in your mediation, you want to ensure you have an agreement that will be enforceable. It is important to make sure the results of your mediation efforts comply with court rules and are enforceable—just in case someone gets “buyer’s remorse” and wakes up the next morning to decide they don’t want to settle the case after all. To avoid that outcome, you must ensure strict compliance with the Court’s rule(s) on enforceability of settlement agreements. It’s too late to worry about that after everyone has gone home. Get it done in compliance with any rules before anyone leaves. The advent of electronic options for mediations has made it easier than ever to finalize agreements.

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