GOING FOR THE WIN:

HOW EFFECTIVE ATTORNEYS WIN CASES FOR THEIR CLIENTS IN DOMESTIC MEDIATIONS

Jimmy Sandlin — Attorney, Mediator, Private Judge

(former Circuit Judge, Presiding Judge Lauderdale County Family Court)

www.huntsvillemediation.com     judge@jimmysandlin.com

(256) 319-2798

Domestic Relations Attorneys have been generally slow to accept mediation as a viable alternative to resolving divorce and custody cases. During my tenure as a Family Court Judge, I would often hear the same responses from these attorneys to my inquiry concerning possible mediation of their case. “Mediation just doesn’t work in divorce cases”; or “These parties are too angry and emotional to mediate”; or “It would just be a waste of time and money.” While I believe that these attitudes are changing, the process is slow and some attorneys still hold these views. In recent years many courts have begun to require mediation in domestic relations cases. I believe this is a step in the right direction, but it means that the process is no longer completely voluntary, and as they say, “you can lead a horse to water, but……” I think you know the rest of the story.

As I have re-entered the real world after leaving the bench, I am now conducting mediations in domestic relations cases. I quickly learned two important truths in my new endeavor. First, it is much easier to tell people what to do than to get them to agree on what they should do. Second, the attorneys are sometimes more of a hindrance than a help in the process.

Making the adjustment from litigator to negotiator is not easy. These are definitely two different “hats.” Many successful divorce attorneys have spent years developing a reputation for being tough. Some of these “bulldogs” are very uncomfortable in a process that does not focus on reward and punishment or winning and losing.

I have found that many of the pre-conceived notions some attorneys carry concerning mediation actually become self-fulfilling prophecies. In other words, if an attorney enters into the process thinking it will be a waste of time, he/she will either directly or indirectly convey that message to the client. At that point we have one side of the case attending the mediation with no commitment to the process.

The client deserves better representation. Whether or not the attorney is a proponent of mediation is not the issue. If a case has been ordered to mediation, or the parties have chosen to participate in this process, the attorney owes the client a duty to make every reasonable effort to settle the case. The client will invest his valuable time and money to this end. To offer anything less than a best effort is at least unethical and in some cases, malpractice.

How can an attorney be certain that he/she offers a best effort in the mediation process? I have five tips which may help. These tips have been developed from my observations of the most common mistakes attorneys make during mediation. I realize that mediation is difficult in domestic cases due to the high level of emotion. But the hidden costs of litigation in these cases have convinced me that this process is the best alternative. Try these suggestions and I promise a more favorable outcome in your future mediations.

 

  1. Be prepared- Would you show up for a trial without having completed discovery? I don’t think so. Yet I am continuously surprised that many attorneys attend mediation without even the basic exchange of pertinent documents. We then spend several hours trying to “round up” the information we need to negotiate. Recently I mediated a case involving a seasoned attorney. She had not conducted any discovery prior to the mediation. Then she refused to settle on several issues simply because she didn’t have enough information to advise her client.
  2. Provide position statements – I generally find that attorneys schedule mediation, and then do not think about it again until the day before the mediation. A mediator can be much more effective if he/she has a clear position statement at least one week before the mediation. The mediator can determine which issues are nearly resolved, and those that will require more time. He/she may be able to conduct some preliminary research which might be helpful in evaluating a party’s position.

Caveat: The only thing worse than no position statement is an unreasonable position statement. Don’t ask for things you don’t really want, just so you will have something to “bargain” with later.

  1. Make the appropriate time commitment – The worst “mood killer” for a mediation occurs when one of the lawyers announces that he/she will be leaving early or will be leaving for a couple of hours during the session, and will return. I realize that schedules are difficult to balance but a time commitment to the mediation process must be made and honored.
  2. Advise your client concerning unreasonable expectations- Attorneys frequently tell me that it is dangerous for them to be too “honest” with their clients concerning unrealistic expectations. The fear is that the client will conclude their attorney is not going to fight for them, or is not “on their side.” The result of this strategy is that the case will most likely be tried and the judge will be the one to inform the client that his/her request is unreasonable. The attorney can then take the position that she fought for her client, but the judge disagreed. While this may seem like a reasonable strategy on its face, it ignores the professional responsibility to give our best legal advice. I may not like it if my doctor tells me I need surgery, but I am paying him for his expertise, not to tell me what I want to hear. In the long run, I pay a higher price if he is not completely honest. The client may not want to hear that his position is untenable, but he is paying you for your honest legal opinion.

I recently conducted a mediation involving a marriage of less than five years. The wife was leaving her husband for her boss and was pregnant with the boss’ child. The husband owned a home prior to the marriage and the wife had not contributed significantly to the equity since the marriage. The wife’s lawyer, an experienced divorce attorney, demanded half the equity in that home. Needless to say, the case did not settle, and, in my opinion, the attorney failed his client.

One advantage of mediation is that the mediator can verify to the client

that the attorney’s evaluation is accurate. The mediator is an experienced

professional who has no prejudices against either party. I have found that most parties are willing to re-evaluate their position if the attorney and I both suggest that the desired outcome is unlikely. In such cases I rarely detect any feelings of ill will or lack of confidence in the counsel. If the client wants to “let the judge hear the case” after the attorney and the mediator have given him an honest assessment of his chances of success, the attorney has certainly fulfilled professional obligation.

  1. Leave your ego at the office – Lawyers tend to think in terms of “winning and losing.” This competitive attitude is contraindicated in a mediation process. A settlement of your client’s legal issues is a win. It is not necessary you “get your way” on every point. I have seen several agreements derailed due to each attorney demanding that he/she gets the last word. To borrow a phrase from the parenting vernacular, it is best to “pick your battles.” I understand that attorneys lie awake at night worrying over possible malpractice claims due to something left out or vaguely worded in an agreement. I certainly agree that we should be diligent in that regard, but keep it reasonable. Many very fair settlements have been lost over disputes concerning technical wording or minor points that have little importance in the grand scheme of things. It’s best to think with the calm mind of a year’s perspective, not with the adrenaline-pumped perspective of the current hour.

 

As the costs of divorce litigation continues to skyrocket, and the backlog in our court system continues to increase, our “consumers” are actively searching for other alternatives. The wise attorney will realize that the old portrait of success in family practice is quickly fading, and a new image is emerging. I recently saw a facebook post which illustrates my point, the post stated, “The client who hires a ‘shark’ as an attorney usually discovers that he is the only one getting bitten.” Divorcing parties are now looking for a process which will allow them to move on with their lives in less time, with less expense, and without all the fighting normally attributed to divorce litigation. This is how it should be. Our civil litigation system is not a proper venue for divorce and custody disputes.

I realize that some litigators are too ingrained in the current system to be open to change. Mediation and other alternative processes are viewed as a threat to their financial wellbeing. But to the vast majority of the bench and bar who agree with me that our current system is harmful to the people we serve, I suggest that we should all re-evaluate our techniques in domestic cases. We should encourage the development and use of negotiation skills to replace the damaging litigation tactics of the past. I suggest this for three reasons. First, because times are changing and this is a good move for business. Second, because this method is the most effective way to represent clients in domestic cases, and most importantly, because it’s the right thing to do.

 

Jimmy Sandlin

Attorney/Mediator/Private Judge

(former Circuit Judge/Presiding Judge Lauderdale County Family Court)

Owner – Huntsville Mediation

400 Franklin Street

Huntsville, Al. 35801

(256) 319-2798

www.huntsvillemediation.com

judge@jimmysandlin.com