Pre-Try the Pre-Trial
A pretrial date can focus everyone’s attention. Documents need updating, proposals need drafting and important decisions are getting closer. For the person living through the case, that preparation may bring a different set of questions. Will anyone understand what has happened? Is the proposed agreement reasonable? What happens if we cannot resolve this?
Those concerns belong in the preparation.
In Massachusetts, for example, Rule 16 of the Rules of Domestic Relations Procedure identifies simplifying issues and exploring settlement among the purposes of a pretrial conference. The opportunity becomes more useful when the parties and their lawyers have already examined the facts, the proposals and the difficult choices that may arise.
That is the thinking behind “Pre-Try the Pre-Trial.” Take time before the court event to test how the case is understood, where important information is missing and whether the proposed resolution could work in everyday life.
Begin with what actually requires a decision. A family’s history may contain years of disappointment and disagreement. Preparing for a pretrial conference requires identifying the issues that remain unresolved and the specific outcome being requested on each. A concern about communication, for example, needs to become a proposal someone can understand and follow. Who provides information? Through which channel? Within what time? What happens when a decision remains unresolved?
The next step is to examine the support for the proposal. A strongly held belief may rest on direct observation, a document, someone else’s account or an inference about motive. Knowing the difference helps people assess the strength of a position and identify what still needs to be obtained. It also creates room to acknowledge an unfavorable fact accurately, explain its context and consider how it affects the available options.
Then test the practical consequences.
If one person proposes keeping the family home, the discussion needs to include financing, carrying costs, timing and what happens if the proposed buyout cannot be completed. A parenting schedule needs to account for school mornings, work obligations, transportation and the child’s needs. A proposal becomes easier to evaluate when the people considering it can describe how it would operate after the court date has passed.
At QuantumⓇ ADR, our Two-Coach ApproachⓇ brings the legal and psychological dimensions of that preparation together. Jeff’s family law litigation and trial experience informs our examination of the record, proposed terms and uncertainty involved in asking a court to decide. Ashleigh’s psychological and relational expertise helps us understand how fear, grief, identity or a need for acknowledgment may be influencing someone’s ability to consider an option.
A person may understand a proposal intellectually and still feel unable to accept it. Exploring that reaction can reveal a practical problem that needs fixing, a value that needs better protection or an expectation that deserves closer examination. This is part of The Me in MediationⓇ: understanding the person making the decision alongside the decision itself.
Private pretrial conciliation offers a setting for parties and their counsel to examine these questions with neutral assistance. Depending on the agreed scope, that work can include reviewing the competing positions, testing proposals and discussing strengths and risks. The neutral’s perspective adds another opportunity to assess the case while there is still time to obtain information or revise an approach.
Preparation also includes considering what may happen if the matter remains contested. Counsel can explain the governing law, the proof available and the range of supportable outcomes. The participants can then consider those uncertainties alongside the financial cost, time and personal consequences of continuing. An informed decision requires understanding the alternatives to the agreement under discussion.
For a practical starting point, choose one unresolved issue and put the proposed resolution on a single page. Explain what supports it, what remains uncertain and how it would work. Then address the strongest reasonable objection the other person could raise. That exercise often reveals what the next conversation needs to accomplish.
Even when a session does not produce a complete agreement, it may clarify the remaining dispute, resolve part of it or identify the information needed for a meaningful decision. Counsel remains responsible for legal advice, court requirements and deadlines throughout the process.
Pre-trying the pre-trial gives people an earlier opportunity to have the difficult conversation, while they can still use what they learn to prepare.
To learn about QuantumⓇ ADR’s pretrial conciliation and whether it may fit your matter, visit QuantumADR.com to arrange a complimentary introductory Zoom with Ashleigh and Jeff.
