Mediation: Outline for Attorney Prep w/ Client

Mediation Prep w/ Client

Mediation Prep 2024

Mediation Prep w/ Client is usually done a week to two before the mediation.  It’s about an hour long and the plan is to really let the client know exactly what to expect

1. INTRO

   1. Explain to the client what we are doing today
      1. Go over what mediation is and isn’t, exactly what will happen
      2. We’ll go over the Debt/asset sheet (if applicable)
      3. We’ll go over custody/parenting time
      4. Go over what happens if we don’t settle
   2. Goal is when we hang up you’ll feel ready or nearly ready for mediation.

2. Explain What Mediation is:

1. 1. Let’s me first ask Have you ever mediated before? If so find out who did it? When the context and how this will be different.
   2. This is really an attempt to settle without trial vs going to trial.
   3. So why would we want to avoid a trial? Easy, the joke is the same two people win every single divorce TRIAL…want to guess who those two people are?  Yup, not funny but true.
      1. So what most people don’t know is that trial is
         1. Long at least 3.5 months from the end of trial
            1. Then an appeal…6 months
         2. Expensive. Usually $10K-12K per day.
            1. Appeal is easily 7-10K.
         3. Stressful, all you will think about is the upcoming trial AND the issue of waiting 3-4 months for the decision. There’s a reason we call it a “trial”
         4. Long-term Issues: You cant unring the bell the thing you say during the trial, and if you have kids…it’s an serious issue.
         5. Uncertainty: Even if we feel great today..the Judge in the funny black robe can do whatever they want, don’t like your look that day, well who knows.
            1. Joke is that district court judges usually aren’t picked because they are the smartest…
         6. That’s a trial..so what’s mediation?
            1. just a way to get an expert (The mediator) to try and help you and your soon to be ex, resolve this case.
            2. She goes back and forth to try and get each person to move from their position.
            3. The mediator can’t make order or rulings, it’s just trying to talk to both of you.
            4. No evidence is presented, we don’t need any witnesses or expert or any of that, it’s just talking.
            5. Statistically, if you settle at mediation you are MUCH more likely to never go back to court…as opposed to trials you’ll both be unhappy so you’ll BOTH want to come back to court a lot..and the data supports that.
            6. Confidential: The Judge won’t know about ANY Of this except we tried…don’t worry about offers..how it looks etc.

1. 1. 1. 1. Length:  it will be shorter than trial!
            1. Some go long…longest was 8:30 at night after starting at 9:00
            2. Shortest was probably under 45 minutes, we can leave anytime you want AFTER we made a good faith effort.  How long is that? It depends
            3. This one will go about 2-6 hours.
               1. Be prepared for it to be slow…slow…slow..
               2. Bring a computer/ipad/Notebook..etc.
         2. Cost: still cheaper than trial, but bring your credit card to settle up.

1. 9. You don’t have to leave with an agreement!
   10. What happens if we have an agreement
       1. First decide do we want to sign an agreement that day. Often times we do, but not always.
       2. If you change your mind the next day..it’s a problem let me explain why…
       3. My usual recommendation is if you are not 95% happy…then take the night to think about it and get back to me the next day.
   11. What happens if we don’t have an agreement:
       1. We usually have three significant chances to settle if we don’t settle at mediation.
          1. The next week: people get tired, think about it worried, all they know is they do not like Hanging out with a lawyer and may want to move a little. This can be you..or your ex.
          2. Pre-Trial: this is usually about a month before trial, that’s when we really start getting serious at trial and often we’ll be in person at that hearing and try and get the judge to help us settle.
          3. The morning of trial: terrible, but a good 50% of my cases settled that morning. It’s after we prepped, but it’s common.

1. Strategy

   1. 1. Mediator is not our friend

1. 1. 1. 1. Their style is…______
         2. I like the mediator but, they know me and they know my style.  They know I’m generally pretty aggressive and get annoyed.
         3. Prepare for a little theater

1. 4. use STRONG words
   5. be careful about “I’d like” when you mean HECK yeah

1. 1. 1. They usually pick on the person who is most likely to move….
      2. Same Room or separate?

1. 4. Discuss the option so being in the same room or separate, normally:  I like to be in separate rooms…

1. 1. When and where
      1. No need come early, just a few minutes really, we’ll have a lot of time.
      2. No need to dress up, feel comfortable!
      3. if you need someone to talk to or bounce an idea off, be sure to be able to call them.  I’ll step out if you need, no worries.
      4. I might try and save you some money and hit pause and step out, don’t worry you don’t want me to it’s ok too!

2. Debt/Asset Sheet (Divorce only)

1. 1. Have you seen the debt asset sheet?
   2. Cornerstone of the divorce! Also it’s Ex. 1 if we do go to trial.
   3. (run over the document to explain what it is )
   4. NOTE explain that just because it looks fancy..it’s right, it may not be

1. 1. 1. 1. Use the car value as an example.

2. 2. How’s it look?
      2. Start at the top…and work your way done..cleaning up the document as you go.
      3. Ask if there are any things NOT in there or that don’t look right.
      4. NOTE: you’ll probably be off on some stuff, but that’s ok, get the updated sheet to them later that week

3. Custody/KIDS

   2. Parenting Time

      2. let’s talk!
         2. 2-2-3
         3. 2-2-5
         4. E/O week
      3. go over details
      4. exchange location/time?
      5. sumerm vacations?
   3. special holidays or the normal?

   4.  Custody

      2. are we good on joint legal?
      3. physical…

4. Plan and get approval for opening or/counter offer.

1. 1. Try and go over the first offer. Again explain how it’s BEST CASE

1. Go over Next Step

1. IF we don’t settle…we have the above options to settle before we get into trial phase.