Our Approach to Mediation

Mediation is a collaborative, private process where parties can make settlement offers and negotiate their disputes

Our Work in Family Law Informs our Approach to Mediation

Mediation is a part of the litigation process in many types of civil cases, including
family law, breach of contract cases, and other types of lawsuits. A mediator helped resolve the gigantic lawsuit between Dominion Voting Systems and FoxNews. There are critical differences between mediation in domestic relations (family law) disputes and other civil cases, including:

● Judges can order family law litigants to attend mediation in good faith, so
not attending mediation is not an option, even though mediation is
described as “a voluntary process”
● Attempting settlement (or not) may be reviewed by a judge exercising
hindsight to assess whether one side behaved unreasonably during
litigation of the case as part of an attorney fee request
● Family law cases are fluid, with evolving facts and changes in
circumstances in real-time, while injury cases almost always involve events
in the past

We’ve developed a process for handling cases, including how we approach
mediation. The process can vary depending on when the client engages us. Sometimes we handle the case from the very beginning, before filing, which
allows us to work the case up the way we prefer, but often we are hired after
mediation has taken place and even sometimes days before trial, well after a
final pretrial conference order has been filed. Even when we’re hired late in the
case, if the circumstances permit, I’ll still try to implement my process
compressedly.

A Summary of the Process

1. Make a written settlement offer as soon as possible. What “as soon as
possible” means depends on our access to information. Sometimes we
know enough about the situation to make a settlement offer when we file
the case, but most of the time we need to conduct discovery. Either way,
before mediation, we want to make a complete settlement offer in writing,
ideally in the form of a consent decree (as opposed to a settlement letter).
2. We do not fight over who is the mediator, with very limited exceptions.
There are a few idiots who purport to mediate cases but have no idea what
they’re doing, so I will not use them. Otherwise, we view mediators as
fungible. We will initiate the conversation about who will mediate the case
by sending over 3 or 4 names, commenting that we are open to a different
mediator not on that list, so long as the proposed mediator is qualified and
neutral.
3. Before mediation, we share our written settlement offer with the mediator
and 3-6 pieces of information that are critical to our case and support the
offer. That information can vary and include documents, photos, testimony,
or discovery responses. We are conscious about limiting what I share
because experience has taught me that the more information we send, the
less likely a busy mediator will read it.
4. If the mediation session results in the settlement of part or all of the issues,
I’ll memorialize that as a court order as soon as possible. The common
practice is for the mediator to write a one-page outline of the topics
resolved by the parties. Those summaries are generally so vague that they
are unenforceable if one side decides to renege on the deal, so we want to
capture the agreement with a signed consent order.
5. We want to mediate even in the most high-conflict cases with a low
likelihood of settlement. I always learn things from the mediator about the
other side that I didn’t know already, including the relationship dynamic
between my opposing counsel and their client, the motivation of the
opposing party, and insight into the other side’s theory of the case and any
evidence supporting it.
6. We will mediate two or three times. Mediation is expensive, but it costs
very little compared to a trial. We especially want to mediate if the case
was mediated before our involvement because prior counsel did not inform
the client as we would have, nor was the mediation approached in our way.
7. If mediation fails, we’ll make another written settlement offer. Depending on
the circumstances, the offer may be identical to the pre-mediation offer, or
it may be different. We don’t like expiring offers, so we’ll pitch the offer as
an open offer to resolve the case anytime before the trial.
We view mediation as risk-free. Only good things can happen, even if there’s no
settlement. Making a written settlement offer can psychologically affect the
opposing party at trial by creating a risk of not beating our offer. Mediation has no
downside if you’re prepared and understand the value.

The Curse of Knowledge & Mediation

Don’t let your superior preparation become a disadvantage

The curse of knowledge is a fascinating condition that impairs our ability to relate
and communicate with others. We have seen the curse of knowledge in legal
disputes, and it can be a real trap for the unwary.
You should only make a settlement offer when you know enough about the
strengths and weaknesses of your case to make an informed decision. In the
same vein, you should (generally) only go to mediation if you’re positioned to
make a deal — there’s no point in going if you don’t have what you need to
resolve your case. So you have to prepare, be confident about the facts, and
know your limits to compromise.

The paradox here is that preparation can be a disadvantage due to the perverse
incentives of our system, especially in family law. Some highlights:
● Cases are only resolved one of two ways: by settlement or trial. Trial is
expensive and risky, so an uninformed, unprepared, or even malicious
participant may not negotiate in good faith, hoping you’ll enter into a
less-than-ideal resolution to avoid trial’s expense and public exposure,
regardless of the strengths and weaknesses of your case.
● Anyone can claim anything, especially in family law, with no evidence in
support, and with any exposure to fee-shifting not guaranteed and deferred
months or years down the road.
● Mediation is private, and there are no rules. There’s no immediate
downside to an unprepared or malicious participant taking unreasonable
positions to manipulate your position and throw you off. No one will ever
know.

Because of the curse of knowledge, superior preparation can be a drawback if
you’re not careful. You cannot unknow what you know, even when you realize
you’re dealing with an ignorant opponent. So you go in with an idea of what is
fair, reasonable, or 50/50, but you’re facing a rogue opponent without that
knowledge and the mental restraints of that range of information. You may know
that $1.5 million is half the total amount at issue and a reasonable outcome, but
then you receive a demand for $20 million with no factual basis. Put another way,
they are not impaired by reality, so they feel free to take wild moonshots. If you’re
realistic and try too hard, you’ll bid against yourself because your opponent isn’t
appropriately engaged or acting in good faith.

How do you counter the curse? Be very clear about the facts and the numbers,
and use that information to define the limits you can agree to. Do not assume
that your adversary has done a fraction of the work you did to prepare for the
session. Try to find out what the other side doesn’t know, and use the mediator to
relay factual data to the other side to reset their expectations. Review and
consider any verifiable information you receive during the mediation session.
Don’t deviate from your position unless the other side participates realistically —
meaning don’t even entertain crazy. Understand that you have other options for
resolution, including settlement outside of the mediation session and trial. You
should remain mentally willing to walk and even propose returning to mediation
once the other side understands and appreciates the facts.

This is part of the reason we often agree to mediate a second and even a third
time. After an unsuccessful mediation, we revisit our trial preparation to prove our
claims and disprove and rebut what we heard in mediation. If the client attended
mediation with a different attorney and hired us later, we’ll absolutely go to
mediation again. It’s a virtual guarantee that the experience will be completely
different. We’ll bury the other side beforehand with trial evidence they’ve never
considered because the client’s previous attorney didn’t: photos, recordings,
timelines, and even maps.

Even if multiple sessions are unsuccessful, we will plant seeds of doubt in the
opposing party’s mind to adversely impact their performance at trial (more on this
below).

Why I might negotiate with a terrorist

Sometimes we are asked why we’re going to mediation when we *know* the
other side is unreasonable and will not settle. We like going to mediation
especially when the other side is unreasonable and has weaponized the family
law process.

How can a litigant weaponize a process? The law that applies to family law cases
is vague and amorphous. The legal standard for assessing which parent should
have custody of a minor child is “best interests.” What does that mean? It means
anything you can imagine, on a case-by-case basis. The legal standard for
dividing marital property is “fairness.” What does that mean? It means what is fair
under the circumstances. Throw in protective order laws which allow anyone
claiming domestic violence to make an allegation at no charge, without the need
for a lawyer, apply the lowest burden of proof possible, provide that if the judge
believes the claim, the claimant automatically receives custody of any minor child
involved and an automatic award of attorney fees, and bar the judge from
assessing attorney fees against the claimant if the judge doesn’t believe their
claim. You’ve created the perfect storm where every participant is incentivized to
make false allegations, risk-free.

A former client called us five years ago and said, “My wife needs some help.” His
wife was the attorney-in-fact for her brother, Chris, (our former client’s
brother-in-law), who was in prison for the second time.
In the 1980s, Chris married a lady with a young daughter from a prior
relationship. Chris was the only father that the girl ever knew. The daughter was
disabled, and even when Chris and the girl’s mother divorced in the 1990s, Chris
and his family stayed in contact with the girl and helped care for her.
Chris owned a home in Sand Springs. When he went to prison the first time, after
his divorce, one of his cousins fell on hard times and asked if she could stay in
his home while he was incarcarated. He agreed, provided that she kept the
house up and made the (very low) mortgage payments as rent while she
occupied it. She did so, and it worked out well for both of them.
Years later, while in jail awaiting trial for his second round of charges, Chris’s
ex-wife came to see him. She knew about his agreement with his cousin in the
‘90s, and she told Chris that she and her daughter were losing their apartment
and about to become homeless. Concerned about her daughter’s wellbeing,
Chris told his ex that if he was convicted, he’d give her the same deal that his
cousin had: keep the house up and pay the mortgage payments. She agreed, he
was convicted, and she moved into his house with her daughter.
After a year or so went by, one day Chris received a special package in the
prison mail. He’d been served with a lawsuit filed by his ex. She claimed that he’d
verbally gifted her the house. Chris was shocked and felt defenseless. He
executed a power of attorney for his sister to act on his behalf, and she was his
only hope.
Chris’s sister hired an attorney in Sand Springs, who filed a motion to dismiss,
asserting that real property cannot be gifted verbally (this is true). The judge
denied the motion to dismiss. The case then sat for over a year. Then I got the
call to close out the case.
The judge ordered mediation prior to trial. We attended mediation with Chris’s
sister. We saw Chris’s ex as we entered the session. She had a determined look
on her face, and her first offer in mediation was that Chris could go straight to hell
and stay there. Through his sister, Chris made a series of cash offers all the way
up to $50,000 cash with the right to remain in the home for months. She rejected
every proposal. “My house.”
His ex made a critical error. She filed her lawsuit and entered mediation with
nothing to lose: she either wins a free house, or the case ends and she returns to
the exact status she was at before she filed. Chris gave her something
meaningful to lose. If she’d accepted Chris’s offer, she would have been $50,000
richer. Now we were heading to trial, and she had something to lose: $50,000
cash.
It affected her. Her attitude in the courtroom was different than it had been
through the entire case. Chris was transported to the trial from prison, and he
was a terrible witness. But so was she. She was nervous. Her testimony was
inconsistent. Subconsciously, she knew that she had to beat our offer for that trial
to make sense.

And Chris won.

So we are willing to mediate, even when dealing with a rogue actor. The mediator
will have our written settlement offer and the critical evidence supporting our
position before the mediation begins, then the other side will have some tough
decisions to make.

There are stark differences between pretrial work (discovery and negotiation) and
courtroom advocacy in trial. Most lawyers wait until after mediation fails to start
thinking about trial. In our view, that’s a mistake.

Even though mediation is private, we still learn things about the other side’s
position that will help me refine evidence for trial if we don’t settle. We’ll
stress-test the case at mediation, and a failed mediation session will serve as a
springboard to launch the case on a fast track to trial.