One of the most important phases of a divorce case is the temporary orders stage. In some jurisdictions the parties agree to and attend mediation to attempt to reach an agreement on the temporary orders. In other jurisdictions (such as many of the courts in which I practice) attending mediation is mandatory prior to a temporary orders hearing. Below are what I believe are the keys to successfully mediating temporary orders.
Prepare for Mediation as Extensively as You Would for a Hearing
Lawyers will often under-prepare for mediation, especially one solely for temporary orders. I’m not sure why this is, possibly because the environment is a relatively relaxed one as compared to a courtroom. Nonetheless, the temporary orders set the tone for the litigation going forward. Whatever is agreed to will likely be very difficult to undo later.
For example, if the husband ultimately wishes to obtain primary custody of the children in the final order, it is probably a significant mistake for him to agree that wife get primary custody on a temporary basis. Doing so allows the other side the later argument that since he agreed for wife to have primary custody on a temporary basis he must have felt that this was in the children’s best interest. Absent some dramatic change of circumstance husband will be hard-pressed at trial to explain why he believed this was in the children’s best interest then but not now. All of these kinds of significant issues and positions should be discussed in detail with the client prior to attending mediation.
Prepare the Client for Mediation
At times experienced lawyers will be fairly certain what the temporary orders ought to be based on past experience with similar cases and knowledge of the judge’s tendencies on these issues. That is all very helpful. What is not helpful is when the lawyer begins to negotiate these terms without involving the client and getting his or her buy-in. The worst thing you can do is negotiate excellent settlement terms only to then have the client upset because the terms don’t seem so excellent to them. Make sure the client is involved with and approving of any terms that are proposed.
Don’t Be Scared of the Courthouse
I am always of the belief that a reasonable settlement is in the client’s best interest. The key word here is “reasonable.” Battling it out at the courthouse should be reserved for those issues where it is simply not possible to reach a reasonable resolution. With the growing trend towards mediation over my career I have noticed that some lawyers become so committed to the process that they cease to view court as an available option. While I like settling cases just as much as anyone else, it is a mistake to limit yourself in this way. The opposing attorney needs to know that you’re willing to go to the courthouse to protect your client’s rights if necessary in order to get a fair result.
As important as temporary orders are in divorce litigation they are frequently not given as much attention by attorneys as they deserve, especially at mediation. Proper preparation and a willingness to do whatever it takes to obtain a fair and reasonable result will dramatically improve your chances of a successful outcome.
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