Don't Wait, Mediate

A potential client called me last week, asking for a recommendation for a forensic accountant. She was in the midst of a divorce and was trying to do most of the work herself, including finding an accountant who could analyze the condition of a family business and provide her advice on its valuation. I made some suggestions about how she should go about finding an accountant, for which she thanked me and then said, "If things get ugly, maybe I'll call you to mediate."

Without knowing the specifics of this woman's situation, I can't say whether her approach was the right one for her, but my general advice is: don't wait for the ugliness, mediate now! As I explained to her, the best time to resolve a dispute, especially a marital one, is before the parties have dug in their heels and entrenched their positions. People are much more willing to make compromises before they have made a an emotional investment in their position. In this woman's situation, I think she would be best advised to do her research, get all her ducks in order, know her options, etc. and then, if possible, find a mediated, non-adversarial environment to present them.

Once you've sent an initial demand letter, it's far more difficult to create a settlement environment. Even though most people understand that the demand letter is just an invitation for a counter-offer, it does set the stage and level set your expectations. Maybe those expectations are reasonable, maybe they're not. Whatever the case, initial demands are almost always met with shock. "You can't believe what she's/he's asking for", you've heard a million times from your divorcing friends. A far better approach is to find a way to present your position and expectations in person so that you can explain the rationale behind them. And if a mediator is present, he can act as a facilitator to make sure that your position is presented with a minimum of interruption. A mediator can also monitor the situation to make sure that your counterpart is hearing what you are saying, even he's not agreeing with them. Additionally, a mediator can make certain that you are hearing you're counterpart's position.

In my experience, it is much more difficult to "bring the volume" down once the situation has gotten ugly, as my potential client called it. That's not to say that a mediation on the eve of a trial isn't worthwhile or effective, but my interest is in finding practical approaches to resolve disputes quickly, at the least expense and with the best outcome. And I have found that early mediation is the one of the best ways to achieve these goals.