Hon. Winship C. Tower (Ret.)
Family Law Neutral, The McCammon Group
Fellow, American Academy of Matrimonial Lawyers
I have successfully mediated many complex equitable distribution ("ED") divorce cases and have debriefed many of the outstanding family lawyers involved for their feedback on the process. This article contains a compilation of resulting observations and ideas to enhance effective advocacy in mediation of these challenging and interesting cases.
Lawyers who elect to use mediation in a complex divorce case are motivated to achieve agreement on an equitable distribution plan in order to avoid a lengthy, expensive trial and unpredictable determination by a court. To realize the benefits of mediation, thorough preparation is essential because the financial stakes are significant and the issues are multifarious.
Effective advocacy in mediation requires lawyers to be as well versed in the facts and law of their case as if they were in trial. Mediation, like litigation, mandates critical advance groundwork to identify, value, and classify each martial, separate and hybrid asset, as contemplated in Va Code Ann. Section 20-107.3.
Equally crucial to a successful mediation is lawyers' preparation of their clients for the actual day(s) of session. The long and tedious nature of the process should come as no surprise to the parties. They will want to bring something to occupy themselves during the Mediator's often extensive caucuses with the other side. Counsel should strongly recommend that their clients pack patience and perseverance in their bags. Both the lawyers and their clients must bring to the session a positive attitude and a strong commitment to its success.
Counsel are responsible to insure their clients enter into mediation with realistic expectations. Promising an improbable result is counterproductive. Promising a stake in the outcome of his future, however, empowers the client and furthers his investment in the process.
Confidentiality is an extraordinary advantage to mediation; lawyers must emphasize this to their clients. Privacy is of great importance to clients, as is closure. Clients want to move on with their lives, their investments and their businesses.
In my practice, a joint conference call with the lawyers starts the actual mediation process. One of the first orders of business will be the status of discovery.
Informal or formal discovery to identify, value and classify the couple's assets is a pillar to a successful ED mediation. I have handled many complex cases before suit has been filed, but the feasibility of reliance on informal discovery turns on the level of trust between the parties and between counsel. More often, formal discovery will be necessary.
I follow up the joint call with ex parte pre-mediation calls with each lawyer during which I probe to insure that each side is satisfied with the documentation exchanged. It is not productive to schedule the mediation prematurely before each side has adequate information.
The individual calls provide an opportunity for the lawyers to educate the Mediator on case law to be relied upon, any expert's valuation methodology and any critical financial, emotional or personality issues likely to impact the process. At the conclusion of the call, the Mediator should be able to articulate the positions of the client, and the particular areas in which the lawyer is looking for help from the Mediator....
To continue reading the article, please click here.