Tracy Stewart
Tracy Stewart
Boy Scouts Would Excel in Mediation
How to demonstrate your value to your mediation-bound clients.

March 15, 2012
by Tracy Stewart, CPA/PFS

Knowing how to help your clients get through a successful mediated negotiation is a value-added service that can set you apart from your peers. You don’t even have to show up for the mediation to be of value to your clients.

Texas mediator Linda McLain explains mediation as “a way for two or more entities to attempt to reach reconciliation, settlement or understanding with the assistance of an impartial person, the mediator. Even if the issue is not settled, the process has value.” 

Mediations are not just for divorces or getting your stubborn neighbor to admit he has encroached on your property boundary. McLain’s mediation practice includes personal injury, contract disputes, employment law issues, estates, trusts, construction law, and school law. Over the years, she has developed a list of tips for getting the most from the mediation experience.

The Boy Scouts’ motto about always being prepared holds true for mediation. McLain advises, “Advance preparation is the single most important way you can ensure a positive mediation experience.”

As a financial adviser, you are skilled in helping your clients prepare for the future by talking through what can happen along the way. What follows are seven tips McLain shares (and you can too) with individuals headed into mediation. 

  1. If you have an attorney on this matter, plan to meet with him or her a few days before the mediation date.
    • Is there anything you still need to gather?
    • Identify what is essential to discuss at the mediation and what can be included in a pre-mediation confidential statement of your position for the mediator.
    • Develop a realistic settlement range of best case, worst case and break-even point. You need to have some idea of what the different proposed settlement options might be and how you will respond to them.
    • Identify your starting offer (see #2 below).
    • Go over the logistics of the mediation. Be sure you know where to go and when to show up.
    • Go over what to expect in the mediation, including rules.
    • Discuss what logical next steps might be implemented if mediation does not solve the dispute.

  2. If you initiated the lawsuit, bring a written offer to get the negotiations started. This should be a starting place for settlement discussions. It is not your bottom-line position. McLain notes that “valuable time is wasted in many mediations while parties try to decide what their first offer should be, when it would be a better use of everyone’s time to know that before you arrive.”
  3. Do not bring uninvolved parties into the mediation. Consulting with them by phone, email or text during the mediation is normally counterproductive to settlement. If you need that input, get it as part of your pre-mediation preparation.
  4. Listen well. Don’t prepare your rebuttal while the other party is speaking. Listen to what they say, how they say it and what they do not say. Be aware of body language and other nonverbal clues. This can make a difference between settlement and disaster.
  5. Use cheat sheets. If you are worried about remembering your points before your turn to speak, make quick notes to yourself or to your attorney during presentations by the mediator or the other party.
  6. Do not argue with the mediator. McLain says, “It is my duty to share the positions and information authorized by both sides. These positions and information are not my beliefs, and disagreements about those facts are rarely, if ever, productive. Resist the urge to respond to every subtle difference in points of view over the facts.”
  7. Don’t get sidetracked by the past. It is the one aspect of your case that you absolutely cannot change. Look instead to what you can control in shaping the future through a well-reasoned settlement.

When your clients are looking forward to mediation, share these tips to help them walk away with a successful outcome. As a value-added service, you can help prepare clients who are facing mediation to be able to handle the unexpected and/or the unpleasant even if you will not be by their side during the negotiations.

Tracy B. Stewart, CPA/PFS, CFP, CDFA specializes in family law litigation support in Houston, Texas. She helps clients protect their wealth during property settlement negotiations. She is a member of the AICPA Personal Financial Planning and the Forensic and Valuation Services sections. She is a board trustee for the Collaborative Law Institute of Texas as well as on the Executive Board of Texas Society of CPAs. You can contact her through www.texasdivorcecpa.com.