Meredith Cohen, Certified Mediator 

Divorce by Mediation

605 East Robinson Street

Orlando, FL 32801 

mjcohen@cfl.rr.com 

Phone: 407-977-0021

FAX: 407-641-8390 




The following article written by Meredith Cohen
was published in the “The Briefs”, the monthly
news magazine of the Orange County Bar
Association in the May, 2003 issue.
© by Meredith Cohen


MEDIATION PREPARATION IN FAMILY LAW CASES


PRE MEDIATION CONFEERENCE


A conference between attorney and client to prepare for mediation can pay real dividends in performance at mediation and in good attorney-client relations. Most husbands and wives in dissolution of marriage actions have never been to mediation before. Although most mediators at the outset briefly describe mediation, if this is the first explanation of mediation the client hears, it may not sink in. A conference between the attorney and client in the attorney’s office prior to mediation can be a more effective way to explain the mediation process and prepare the client for meaningful participation in mediation. Among the things a client may be advised at such a conference are:


  1. Mediation is required in Orange County in every family law case before a hearing or trial may take place before the Judge;


  2. The mediator is not a judge and will not decide anything or tell anybody what to do at mediation, but will help the parties and their attorneys explore the possibility of settlement of some or all the issues.


  3. If agreement is reached at mediation, a written agreement will be prepared and signed by the parties and the attorneys. If the agreement covers all issues, a brief final hearing may be scheduled before the judge for approval of the agreement and entry of the final judgment of dissolution of marriage, and the case is finished.


  4. Settlement of the case at mediation will result in substantial savings in attorney fees and court costs otherwise required for trial preparation. The attorney may want to estimate such savings.


  5. If no agreement is reached, everything said and done at mediation is confidential and neither party may tell the judge what the other party said. If at mediation facts showing child abuse, elder abuse or the future commission of a crime come out, the mediator is required to report such facts to the proper authorities as an exception to confidentiality. Confidentiality prevents either party from issuing a subpoena for or calling the mediator as a witness at a hearing or trial if there is no agreement.


  6. The standard Order of Referral and Requirement to Attend Ffamily Mediation entered in Orange County requires each party at least three days prior to mediation to file in the Domestic Relations Clerk's office a completed current Financial Affidavit which conforms to the new family law rules. The Order also requires in cases involving child support that a completed Child Support Guidelines Worksheet be filed in the Clerk's office. And the Order requires (a) both parties to bring to mediation their three most recent pay stubs; (b) if self-employed, a copy of their most recent Form 1040 filed with the IRS; and (c) a monthly budget. The pre-mediation attorney client conference is an excellent opportunity for the attorney to review and complete with the client the requirements of the Order.


  7. The pleadings and interests of the client may be reviewed to prepare a proposed settlement, and to prepare responses to anticipated settlement offers by the other side.


  8. The attorney’s advice should be given on whether the client or the attorney, or both, should speak at mediation, what subjects to discuss and what subjects to avoid so as not to prematurely disclose trial strategy if no agreement is reached.


ATTORNEY MEDIATION MEMORANDUM


Mediators in family law cases can be more effective at mediation if they have some advance knowledge of the case. The Attorney Mediation Memorandum can be as simple as a letter to the mediator stating whatever the attorney wants to say about the case and enclosing the following:


  1. Copy of the current Financial Affidavit of the Husband.


  2. Copy of the current Financial Affidavit of the Wife.


  3. Copy of the Petition for Dissolution of Marriage.


  4. Copy of the Answer and Counter Petition.


  5. Copy of the Response to the Counter Petition.


  6. Copy of any Court Orders.


  7. Statement of the Issues and the client’s position on each.


If the mediator has such a memorandum in a private mediation a few days before the mediation, the mediator can prepare for mediation a spreadsheet for equitable distribution which lists and compares the values that each party gives for the assets and debts. The mediator also has time before mediation starts to think about the facts and issues and set an agenda. Even having the memorandum at the beginning of the mediation in the Orange County mediation office helps the mediator to more quickly identify the issues and saves valuable mediation time.


There is still a great need to educate the divorcing public about mediation. Family lawyers can contribute to this effort by having a pre-mediation conference with their clients as suggested in this article and by giving the mediator a simple Attorney Mediation Memorandum before mediation starts.



©2009 Meredith J. Cohen, PA