Friday, October 5, 2012

Family Law: Mediation Do's and Don'ts

A couple of weeks ago, I attended a mediation with one of my clients and we saw some pretty interesting situations.  First of all, for those of you that have never attended or heard of a Family Law Mediation, let me explain the process.  The mediation process involves a third party that helps people who disagree in a family law case to reach an agreement.  What some people fail to understand is that the mediator submits his/her recommendation to the court regardless of whether or not an agreement has been reached by the parents.

When we arrived we saw usual things that you would expect to see: nervous people, quiet people, represented and unrepresented attendees and people taking children into the childcare waiting room area.  Along with the usual things, we also saw some unusual things happening: A couple yelling and using profanity, a woman telling anyone who would listen about her daughter's custody case and pending mediation, a woman loudly explaining to the clerk how she had just been released from jail, just in time for mediation.  We also saw people with family members who were trying to "prepare" them for mediation, by giving them advice on the best way to make the other parent look bad.

All of this kind of made my head spin and in some cases I had to tightly hold on to the chair to keep from getting up and demonstrating some of the "do's and don'ts" of mediation.  But alas, I remained silent and only advised my client about the mediation process, like a good little attorney. When it was my client's turn to start the process, I quickly removed myself from the mediation waiting area, lest I be tempted to say something that will get me into trouble.

In my county, if the parent (s) is represented then the attorney is required to be available for at least the last 45 minutes of the mediation.  Having the attorney present, helps to ensure that the parent (s) understands the recommendation that is being submitted to the court by the mediator. So, I promptly returned to the mediation waiting area at the appointed time and we worked out the terms until everyone agreed.  This actually turned out to be a good mediation day and the right person won, the child.

Now let's discuss what I feel are the "do's and don'ts" of mediation.  This list is not intended to be exhaustive, nor is it meant to represent the opinion of every lawyer.  Most importantly, it is not intended to be advice.  It is only intended to provide information for people who want to learn more about the mediation process.


  • Attend mediation orientation (if required in your county).
  • Pay close attention to whether or not the child needs to attend mediation (some counties require 6 and older to attend).
  • If the child is required to come, explain that he/she will go into a childcare room and make him/her feel comfortable about talking to the mediator. Make sure the child understands he/she is not in "trouble."
  • Dress in business casual clothing (if represented ask attorney for suggestions about apparel)
  • Be on time.
  • Discuss the best interest of the child.
  • Try to be flexible as long as it is in the best interest of the child.
  • Ask for a break, if you feel that you are feeling too emotionally charged to remain under control.
  • Speak clearly and listen actively.
  • If represented, ask your attorney about anything that you don't understand before agreeing to it.
  • Don't coach the child about what to say to the mediator.
  • Don't speak loudly about your case (or anything else) in the mediation waiting area.
  • Don't yell at the people at the mediation desk.
  • Don't bash the other parent.
  • Don't insist on discussing issues in mediation that the mediator has said not to or has moved on from.
  • Don't speak directly to the other parent unless the mediator asks you to. Direct your answers to the mediator.
  • Don't interrupt the other parent or the mediator when one of them is speaking.
  • Whether represented or not, do not agree to anything that you do not understand.
  • Don't be afraid to ask questions.

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