How Do I Win In Mediation?

Carrie Sue Doxsee, J.D.
7 min readJun 2, 2021

Is there a way to go from stuck to settlement?

After doing tons of mediations, I started to think about how I could figure out what people were doing to come out of their mediations with a full agreement. Settlement is normally the goal in mediation, right? Not always.

So how do I know if mediation is right for me or if it will be successful?

Lots of people think that mediation won’t work for them because both Parties are stuck in what they want. They can’t find a solution. The other Party will never agree to anything they want. With a good mediator, the Parties have assistance in finding solutions. Miracles can happen.

There is more to mediation than walking out with your case settled. Getting a full agreement is not always the measuring stick to a successful mediation. Partial agreements can build trust and then lead to full agreements later on. If there is an emotional or practical log jam that keeps the Parties from working together, the mediation process can help work through that one issue to make room for the Parties to see each other’s point of view which leads to a fair agreement.

Sometimes we need to hear the other person’s “why” for a particular offer so we can find a solution that works for both Parties. Once you know why it is important to the other Party, you also see patterns and solutions for other issues which you did not have available before the mediation process.

As an attorney, very rarely do I have the Parties skip mediation. I think it will have benefit no matter what happens. Even if we learn that there is no way to work together to find a solution, it helps us move to preparing for trial faster.

Now that you know that mediation is always a good idea, how do you start the mediation process?

Scheduling a mediation is pretty simple. You can either ask the Court to Order mediation or you can agree with the other Party to attend mediation. If you will struggle with coming up with the money for mediation, you will want the Court to Order the Parties to attend. With an Order of the Court, you will be eligible to attend either a free session or pay based on a sliding scale. If the Parties agree, you can then contact the mediator to schedule the session.

Now your mediation session is scheduled, now what?

Let’s think about what someone going into mediation is thinking…

First, they normally don’t know what is going to happen- they don’t know how mediation works or even what is mediation. But that is not their fault. They have an attorney who does a terrible job explaining what happens in mediation, does not teach them the secrets of how to be successful, and not even sitting down with them prior to mediation to help them determine their “must have” list and things they are willing to negotiate. They don’t know-

· What is mediation?

· How does mediation work?

· Is mediation binding?

· What happens if mediation does not work?

· How do I win at mediation and walk out with a settlement?

· Is what I say in mediation private? Who can find out what we talk about?

All these are great questions that every attorney should answer for you, but often don’t. Mediation is never binding until people sign a settlement agreement. In fact, what you say in mediation is not to be shared outside of the session… not even to the attorneys unless the Parties agree to have the information shared with the attorneys. The Judge is not to find out what is said unless there is a signed agreement.

The biggest secret to mediation — this is NOT about what the Judge will do, but is about what will work for the Parties. You have the freedom to craft your own solutions to your problems. This is why mediation is so popular.

Second, they go into the mediation session cold. What does that mean? They come in without being prepared. The outcome of mediation can change your entire life. Do you really want to go into the session without any preparation?

Do you have the documents you need to bring? (Bet your attorney did not even tell you to bring documents)

Do you have your list of “must haves”? (Did you know not to expect to get everything you want?)

Do you know how to make an offer? (What do you mean? I have to be prepared to make offers… what do I actually do in mediation?)

Third, they come into the session with the wrong mindset. Many people come into mediation mad at the other Party... so mad they can’t even think of compromising. Some come in so hurt they can’t see anything else but how the other Party is going to continue to try to crush them. Others some into mediation with opposite needs… they get along, but they each need something different and can’t figure out how to bridge the gap. Other people just show up because they have to or their attorney told them to go. Mediation should be a business negotiation. The more you keep emotion out of it the better. Sometimes is this 100% not possible- at least for one of the Parties. So you need to know the tools, tips, and secrets to successful mediation to get to finding solutions.

Settlement can change your life.

Do you really believe that having your case settled is the key to having a positive life moving forward? At the very least, it saves you a ton of money and stress of a trial. I cannot stress enough how much having a settlement makes such a difference in your life. Why? The healing of coming out of a court case is empowering. First, you learn that when bad things happen, you can survive and thrive! Second, it really provides you with total closure in the relationship. The real benefit of settlement is how it impacts your life and how you move forward.

It is kind of like losing weight… there are components to losing weight. You need to eat healthier… you need to exercise to feel better… you need to change how you look at food. Your success is dependent on your mindset and your execution. Losing weight does not just happen. You must intentionally work at it. The same is true with mediation. You need to do the work to understand how to be successful, bring the right documents to prove numbers and issues, and have the right mindset to listen to the other Person and find solutions.

So what is holding you back from a full settlement?

Are you devastated or hurting because of something specific that happened? If this is the case, then maybe transformative mediation is a better fit for you. This allows you to have a 1–1 with the mediator to help them know how you are stuck and work on tools to look past the event that is keeping you stuck. You may never get the answers you want from the other Party, but sometimes you do. It never hurts to voice what has hurt you as it is a release for YOU to stand up for yourself.

Learning how to stand up for yourself is even better than what you get out of the settlement!

Are you just super mad at the other person? This is when you maybe have a specific event that caused you to feel this way. It could be that you are going through this legal case. It could be a build up from years and years of issues that are finally coming to a head.

Talking about what is holding the Parties back from working together will last well beyond the mediation session.

Do you just have different needs? This is especially true when we are talking about money issues. An example is that maybe one person is getting the house and the other needs to establish a new residence. The person establishing a new residence needs cash. The person with the house may be looking at keeping their retirement in tact. So the mediator will walk the Parties through strategies on how they can balance the needs of both Parties.

Is one person not understanding why the other won’t be reasonable?

This is a big problem when people come into mediation — they think the other person is being unreasonable. Sometimes this might actually be true. Other times it is because the other person does not understand why the person feels the way they do.

Here is a good example: Dad wants to have significant time with the child and proposes a schedule that is allowing more days and not more quality time. Mom assumes that they are trying to get a break on child support. In mediation, we can find solutions to allow a better schedule for the child, additional quality time for dad, and trust of the Parties that is really about relationship not money.

I could go on and on about mediation. I am a huge fan of using it with my family law clients. I have created a great publication to help you learn the secrets of being successful at mediation. You can grab a copy here: 5 Secrets to a Successful Mediation. Once you are on my mailing list, I can send you additional information about mediation and let you know when I have a video or new article that might help you.

If you do want to schedule a session with me, you can go to Schedule a Mediation Session. I will be happy to help you find the solutions to your family law case!

In closing, just remember that a successful mediation does not always mean a full agreement. Sometimes it does take a few sessions before you can find the settlement you are looking to find. In the end, an agreement fashioned by the Parties is always better than the Judge making a decision on your case at trial (and a lot cheaper too).