Role of the Lawyer in Family Mediation
Most people using mediators do not have lawyers when they start the process. They have chosen mediation instead of negotiation through lawyers for a variety of reasons: they want to avoid a process that they perceive to be adversarial, they don’t trust lawyers, they have already reached some consensus about what they want to do and don’t feel that they need lawyers, and, invariably, they want to minimize costs.
Many are quite determined to avoid lawyers all together; others view lawyers in the mediation process as a necessary evil. Most mediators, however, view good family law advice from a lawyer who works well with mediation as critical to a successful process.
The role of mediation “advice counsel” is quite different from the lawyer’s traditional advocacy role. Family lawyers who perform this service well are a great asset to their clients.
There are many things that family lawyers can do, and avoid doing, to offer the best possible service to their clients in mediation. These include:
- Find out why your client has chosen mediation.
What does your client want out of mediation? Is he or she clear about his or her goals? If not, why not? Can you help your client clarify goals? Are you comfortable working with a client with these goals? Will you work with your client to help him or her achieve these goals in mediation? - Clarify what is to be done in mediation and what is not.
Most comprehensive mediators will assume that they are to mediate all issues, which means going through financial disclosure with the clients, preparing financial statements, ensuring that all information each needs about the other’s finances is provided, retaining valuators and appraisers if required, dividing property as they wish (usually by doing a net family property calculation but not always), preparing parenting plans and reaching agreement on child and spousal support. Be clear if only some issues are to be resolved in mediation. - Understand the kind of mediator with whom you are working.
Some mediators are “evaluative”, meaning they are willing to assess and judge the merits of the parties’ respective positions. These mediators may be willing to pressure parties into agreeing to settlements that the mediator considers to be fair and reasonable. “Facilitative” mediators, on the other hand, focus more on process, with the goal of empowering the parties to deal with the substance themselves. They believe that their role is to provide a fair, balanced, informed and safe process that will enable each of them to make the best possible decisions. - Do you have concerns about your client’s vulnerability in mediation?
Speak to the mediator about your concerns. Ask the mediator about the intake and screening procedures and the process options that might be considered to address your concerns. The mediator has the benefit of working with both clients, can see the vulnerabilities and strengths of each and can determine whether they tend to balance one another. Recognize that the lawyer is at a disadvantage when assessing his or her client’s vulnerability in mediation. - Take an active, not adversarial, role.
It is appealing for some family lawyers to completely step back and let their clients go off to mediation without preparation or guidance. This leaves the client without the back-up needed for a successful mediation. Others may consider it their responsibility to talk their clients out of not only their goals but the process itself, pushing the “you can do better in court” button. Mediation clients are vulnerable, not only to each other but also to the pressure of a lawyer. A good mediation advice lawyer will balance the client’s need for legal advice with the client’s wish to have his or her process choices and goals respected and advanced. - Read the agreement to mediate.
Review it with your client. Call the mediator if you have any questions about it. - If your client agrees, ask the mediator to copy you with all interim memoranda of understanding. Call or e-mail the mediator if you have any concerns or questions.
- Be available to your client as the mediation progresses to provide ongoing advice, clarification and guidance. In closed mediation, which is what most mediators do, nothing is final or prejudicial until it is finalized by counsel or signed by the parties without counsel if that is their choice. Most mediators will know when to nudge their clients to their legal or other advisors for guidance.
- When your client calls you, remember your role: to help your client meet his or her objectives in mediation, to provide awareness of the legal implications of those goals and to provide advice about other possible options. Most clients in mediation want to know what is their best case, what is their worst case, and what would their legal fees be to retain counsel for various legal processes.
- If your client changes goals after receiving your advice, consider carefully how to handle it. Presumably your client wants the mediation to continue. How you and your client handle a change of course in mediation can greatly affect the success of the process. Call the mediator and the opposing counsel to explain what has changed and why. Urge your client to communicate the change in goal to the other party before the next meeting so that there is no perception of ambush, bad faith or of the lawyer trying to thwart the process.
- Let the mediator know how he or she can make your job easier. Which financial statement do you and the other lawyer prefer to work with? Are you comfortable with hand-written NFP calculations or would you prefer the mediator to type them onto a form? Do you work with e-mail? What format for the final memorandum of understanding do you prefer? If the mediator prepares a draft agreement, which format do you prefer?
- If you are having a problem with any aspect of the mediation, let the mediator know.
A conversation may be all it takes to keep the process on track.
