This rant is for those (few remaining) lawyers who discourage their clients from trying mediation with the allegation that mediation is too “touchy-feely.” Lawyers and mediators can collaborate to help make a balanced and meaningful mediation process for parties in conflict.
Originally published by Hilary Linton-December 2013 ©
As a mediator, it is hard to believe that, in this day and age, some lawyers still have such a patronizing attitude.
I recently had a client who was represented by one such lawyer. After the intake meeting, the client informed me that she intended to change lawyers. She wanted to try mediation but was being discouraged by her lawyer, who used the said obnoxious characterization.
After the client changed counsel, and after our second mediation session ( the lawyers did not attend but were kept informed of progress ) the client announced: ” This doesn’t feel very touchy-feely at all!”
So what is mediation? And why do some lawyers persist in discouraging it?
Mediation is a strategic, focused, fully informed and balanced process of negotiation. It is a ‘safe place to have difficult conversations’, meaning difficult emotions are accepted for what they are. I suppose this may be challenging to lawyers uncomfortable with or unskilled at handling strong emotions.
Mediation is very much a process of strategic negotiation. Hard bargaining is permitted. Taking positions is allowed. Bargaining with the strength of one’s legal rights, and taking responsibility for one’s legal obligations, is encouraged. Full, sworn financial disclosure is a must. Legal advice on process and outcome is always promoted and supported. In fact, we don’t let our clients reach binding settlements here unless their lawyers are present.
Mediation is a process that takes each person’s procedural needs into consideration. Each meeting is designed to make each person feel as safe and comfortable as possible. If that is “touchy-feely”, then we should be doing a lot more of it, because it leads to strong, balanced, voluntary and enduring settlements.
We do not countenance bullying in any form, not by the parties, not by the lawyers, not by the mediator.
If a person cries, or is angry, or is a “difficult person”, mediators try to understand why. When people behave badly, we try to find the reasonable reasons for the unreasonable behaviour– not so that we can have a group hug afterward, but because deeper analysis of what drives the conflict leads to better agreements.
What does a good mediator look like?
Good mediators do a lot of research, reading, reflection and self-analysis. I litigated for 15 years and know that mediators work at least as hard as lawyers, sometimes harder, because we have two clients to satisfy. We work with two people who are vulnerable, damaged and afraid of their future. Whether they have lawyers or not, almost all clients have these fears. Good mediators definitely try to empower both parties to negotiate well with confidence, with the support they need, with full knowledge of the strengths and weaknesses of their settlement alternatives, and with full information and advice.
We know as well that clients who are living with abuse and violence are at the greatest risk of being harmed when they are separating– whether they have lawyers or not. Most family mediators are trained to identify, assess and manage risk far better than most family lawyers are. This knowledge and experience, which supports both parties because often they are both “victims” of some kind, helps us provide negotiation processes that can feel better and therefore work better for both parties.
It is hard to understand why all family lawyers are not almost always recommending mediation. Any client— whether in court or not– can access up to 10 hours of subsidized mediation (providing the case is assessed as appropriate by the mediator.) The rates are ridiculously low— a person earning $60,000 a year with 2 kids will pay $82 an hour through mediate393 inc. Yes, the mediators are subsidizing the lawyers!!
I recently had a half day mediation under the mediate393 program. Both lawyers attended. The clients between them paid $130 an hour for four hours of mediation……$260 each for a half day mediation with a senior family lawyer-mediator. The issues were complex: income determination for self-employed individuals, spousal support quantum, and duration, proper treatment of an inheritance and family trust income, plus some challenging parenting issues. The parties resolved almost everything because their lawyers were prepared with financial disclosure, the parties had attended a previous mediation without counsel and trusted the process, the mediator and each other, and they were ready to settle.
So no, we don’t sit in a circle, hold hands and sing kumbayah. And yes, we do care deeply about our clients and the quality of the process we give them. Fortunately, the majority of family lawyers get it and use mediation to their client’s advantage as often as they can.