The first important step in preparing for mediation is the selection of the mediator. An involved party and/or a good advocate will actively engage in the selection process.
In some venues, the Court will appoint a mediator in the order which refers the case to mediation. By statute, in most states either party then has 10 days from the date of the order to object to mediation. By the terms of most Court’s orders, the same time is allowed to object to the mediator selected by the Court. The party or advocate should respond to the Court’s order in such a way as to ensure that a mediator of skill, experience, knowledge and effectiveness is appointed to the case. In a family law case this requires a working knowledge of the Family Code and experience in family law in addition to the additional mediation training requirements in most states.
Absent Court-ordered mediation, many attorneys and/or parties choose to submit their cases to mediation without the intervention of the court. In these situations as well, a good advocate will actively pursue an agreement which provides for selection of a mediator with the qualities and qualifications necessary to bring about an acceptable resolution of the dispute.
If you, as an advocate or a party, are unfamiliar with an appointed mediator or one suggested by the opposing party, do not hesitate to request resumes and references from the mediator under consideration. Review those resumes prior to the mediation. Contact the mediator and question her concerning her training, experience, and subject matter knowledge of the issues to be mediated with respect to the qualifications of the proposed mediator and make a decision based upon your independent inquiry. Family law cases can be considerably different from other types of litigation. They require entirely different mediation dynamics and mediator talents than do commercial or personal injury cases.
These “talents” include (but are not limited to) an ability to deal with people at their most vulnerable, an ability to deal with people in crisis mode who will most likely express a wide range of emotions, and an ability to work with the parties in a calm, patient manner so as to allow the parties (and their attorneys if present) to come up with mutually agreeable solutions that will chart a course for their future and the future of their children.
Suzanne Mann Duval is a Mediator-Arbitrator with the Dallas firm Burdin Mediations. With over 600 hours of basic and advanced training in mediation, she has mediated more than 1300 cases to resolution. Ms. Duvall was named "SuperLawyer" by Texas Monthly and Law Politics magazines.