by Christina L. Scott, JD #1 Discovery - One of the greatest barriers to settlement in mediation is lack of relevant documents or incomplete discovery. It is extremely difficult to make a financial offer without sufficient proof of the financial standing of each party. For example, alimony or child support cannot sufficiently be established if both parties have not produced w2’s, check stubs, tax returns, profit and loss statements or the like. Being unprepared without these

by Christina L. Scott, JD Over the years, I’ve asked attorneys to define “good faith” in mediation and I’ve received many different responses. Some say, so long as you come to mediation with at least one reasonable offer, it’s good faith. Others have said that merely being present at the mediation is good faith. Recently I had a case in which one of the parties said something like this, “Our good faith offer is the amount of damages for the lawsuit. If they can’t come to that

by Christina L. Scott, J.D. Used typically in tort matters, a mediator proposal is a rare settlement suggestion offered to the parties post mediation, in an effort to break impasse. This tool is only used when the mediator believes there is a very high probability of success and the gap between the parties is closer than parties perceive. Like all things in mediation, agreement and consent by both parties is necessary for the mediator to proceed with the proposal. A mediato

by Christina L. Scott, JD Mediation is still one of the best tools for disputing parties to resolve conflict when all parties are committed to doing the work. Mediation, however, takes time and is generally not a quick process. If the parties intend to settle, it will invariably take longer than expected. Undue frustration is often caused when parties arrive at mediation with the expectation that it will be done and over within 1 hour. There is also a risk of damaged goodwil

By Christina L. Scott, JD If you’ve represented clients in numerous mediations, you know that the reasons for impasse can vary greatly. The interesting thing is that these reasons are sometimes only the “perceived” reasons. I’ve learned in more than 17 years mediating that the true reasons for impasse, particularly in divorce cases are usually due to what I call the “silent instigators”. These silent instigators are in the room with you during the entire mediation and many t

**This article was published in the Spring 2024 Edition of The Family Law Review. A publication of the Family Law Section of the State Bar of Georgia. By Christina L. Scott, J.D. When I first began mediating many moons ago, I will never forget the time a very large and intimidating man showed up as a “support person” for a wife in a divorce case. I remember asking him who he was and how he was affiliated with the case. He said, “I am here to make sure he (the husband) knows

As a board member of the Georgia Child Support Commission and a member of the Statutory Review Committee, I’m happy to finally announce...

By Christina L. Scott, J.D. Pre-mediation conferences can be a very effective tool to use in getting your cases settled. These types of conferences are permissible, unlike in litigation or arbitration where ex parte communication is not allowed. These conferences can take place with each side prior to the start of mediation or scheduled days in advance. Counsel should treat this conference as a “heads up” call to the mediator, not as an opportunity to advocate for your clien

by Christina L. Scott, J.D. Mediation is the best choice for resolving conflict and as a neutral, I love to do just that. Sometimes, however, there are circumstances and factors that are almost certain to create impasse or no agreement. Here they are: Lack of Preparation Preparation is one of the many keys to a successful mediation and the lack thereof can sabotage it as well. Preparation is not just having all the relevant discovery you need, but also preparing your client

By Christina L. Scott, J.D. Many years ago in an advance mediation training class, I remember my instructor saying, “in order for good sound decisions to be made, we need both Emotion and Logic.” After hearing this, I started to pay attention to my own decision-making process and that of others. I soon realized that there is some truth to this statement. What I also learned is that too much of either in mediation can hinder progress and lead parties straight to impasse. Our

by Christina L. Scott, J.D. Georgia O.C.G.A. 19-7-3.1, also known as the Equitable Caregiver Act, grants legal recognition to an adult...

by Christina L. Scott Mediation position papers can be very helpful to the mediator in civil and commercial disputes. These papers are usually confidential in nature and the contents are never revealed to the opposing party without express permission. Position papers, however, do not have to be confidential. Both parties can agree to exchange papers with each other and the mediator. When drafting a position paper, be sure to write it persuasively and not just provide a resta

by Christina L. Scott, J.D. I once heard an attorney in a mediation say, “I feel like I’m losing.” Many thoughts flashed through my brain in a matter of seconds. My simple response was reminding counsel that it was not her case and so long as the parties agree, they could decide to settle the case however they desired. Sometimes, it is easy for good attorneys to be caught up in “feelings” during mediation. After all, attorneys are advocates and are highly motivated by winn

By Christina L. Scott, J.D. One thing that we all learned from 2020 is the power of negative words, comments, and phrases. Whether it was from our political, religious, and local leaders or from the mud-slinging advertising and commentary during the 2020 election campaigns, we are all intimately acquainted with the effect that words have on us. Words in mediation is no different. The “words” can make or break a mediation. In order to avoid the “break” in mediation, we must av

By Christina L. Scott, J.D. There are many things that can inadvertently or purposefully sabotage a mediation. Sabotage should never be purposeful in a mediation, however the “reality check” says that at times it might be. Here are the big 3: Engaging in Discovery The purpose of mediation is to engage in discussions to move towards an agreement through the process of negotiation and compromise. Mediation is not Discovery or a fishing expedition. However, some parties and cou

by Christina L. Scott, J.D. Mediating virtually during our global pandemic continues to serve as the safest substitute for in-person cases. Mediating virtually, however, can sometimes pose significant challenges for all parties involved. Some of these challenges include platform fatigue, the difficulty of “reading” people on the screen, and participant disconnection. Ask anyone who frequently does virtual mediation and they’ll agree that mediating online is far more draining

Mediating divorce cases involving high assets, creates a different dynamic than those cases involving custody. To reach resolution in these cases, parties must have a level of certainty about the financial issues. Below are a few key tips to keep in mind when preparing for an asset only mediation. Complete all Discovery prior to mediation The importance of having a clear financial picture cannot be overstated. The absence of relevant financial documents is a recipe for failu

By Christina L. Scott, J.D. They say adversity is the mother of invention and COVID-19 is certainly no exception. Never before in our lifetime have we been faced with a global event that affects every single person on the planet. This challenge has caused many of us to push ourselves beyond our comfort zones and to think outside the box. The legal industry is no exception. Cloud or video mediation is happening and it works! Some people, however, are still a little apprehensiv

By Christina L. Scott, J.D. During this difficult time, many law offices and other businesses have closed which has caused some parties to cancel their mediations. The good news is that mediation no longer needs to be cancelled or postponed! Covenant Mediation Services is now utilizing a video conferencing service that allows the participants to join a video conference mediation. Parties will be able to either download a little software onto their device or access the platf

By Christina L. Scott, J.D. Mediation is perhaps one of the greatest processes people can use to resolve conflict. Many people unfamiliar with mediation, however, have varied opinions about the role of the mediator in the process. Many think the mediator’s role is to be a magician, a case evaluator, a judge, a counselor, an investigator, a bully, an advocate, and other roles but this is not so. The role of the mediator is to provide and facilitate a fair and confidential pr