How divorce lawyers (and clients) can benefit from working with mediators

Issue March 2011 By Donald G. Tye and John A. Fiske, with Kimberley Keyes

As the field of dispute resolution expands, and the wallets of clients shrink, mediation is becoming a more and more popular way to resolve issues in a divorce. Many litigators are loathe to turn over control of a case to anyone but a judge. But if both attorneys and mediators are careful to clarify and respect each other's roles, the process can be an effective way to settle simmering disputes without either side getting burned.

Rule 5 of the SJC Rules of Dispute Resolution requires lawyers to provide clients with information about court-connected dispute resolution services, and to discuss with clients the advantages and disadvantages of each. In fact, a lawyer must certify to the court that he or she has complied with this requirement. Family law practitioners often file such certification along with the divorce papers.

But in practice, not all divorce lawyers actually discuss the option of mediation - at least, not at great length - before embarking on the often tumultuous journey of litigation with a client. Indeed, many members of the family law bar feel strongly that mediation is not for everyone.

Other attorneys insist on asking their clients key questions, such as whether they are comfortable being unrepresented in the mediation session, whether they will concede something simply to keep the peace, and whether they will be intimidated by the mediation process before recommending this option. However, when used wisely, mediation can be a valuable tool, and one with which more litigators should be familiar.

In the divorce context, it is crucial that each party has access to information and full disclosure of the other's finances. Some mediators believe that they can achieve this without a formal discovery process. Many attorneys, though, insist on obtaining all relevant information, including the values of the parties' assets, before ever setting foot in the mediator's office. The lawyers should also have a frank discussion with each other, enabling each side to understand the other's positions and rationales.

Mediation can also be useful in other aspects of divorce cases. For example, it can be helpful in assigning parenting issues to a mediator to defuse conflict in this often heated area. Mediation can be useful post-judgment as well. Lawyers may wish to consider including in a separation agreement a provision that mediation is to be used before any litigation is commenced to try to resolve disputes over interpretation or modification of the terms of a divorce judgment. Selecting the mediator in advance, and naming him or her in the separation agreement, can significantly speed up the resolution process.

In selecting a mediator, it is important to be creative. One should choose a mediator whose personality seems particularly well-suited to handle the issues at hand. Soliciting the opinions of colleagues is often useful in making this choice. Careful selection will go a long way toward making clients feel as comfortable as possible. Also, the parties should understand in advance what to expect.

Clients should consult with their attorneys during the mediation process to ensure they make informed decisions. Some mediators use the parties' Rule 401 Financial Statements as the starting point for full disclosure, and involve the parties' lawyers in the discovery process. Other mediators, however, find that their style of mediation works best when counsel are involved minimally, or not at all.

Recognizing and understanding the professionals' roles is key to a successful mediation between parties who are represented by lawyers. Mediators whose clients have counsel should be sure at the outset to involve the attorneys in every step of the process. Making the lawyers feel engaged (rather than unhelpful or unnecessary) goes a long way toward achieving a harmonious working relationship, and ultimately, a peaceful resolution of the issues.

Counsel should realize that their job in this context is to act as a coach, not as an advocate. One must keep in mind the distinction in the SJC's Rules of Professional Conduct between lawyer as advisor (one who explains to the client his or her legal rights and obligations and their practical implications) and lawyer as advocate (one who zealously asserts the client's position in the adversary system.).

Divorce lawyers especially should understand this important difference when representing clients in mediation, which is not supposed to be an adversarial process! For example, before filing a motion pertaining to an issue that is being discussed in mediation, the lawyer may be wise to consult with the mediator to determine if the parties should have another chance to work it out before going to court.

Two real life cases illustrate why, in the words of Aesop, "gentle persuasion is better than force." In both scenarios, the wife, represented by counsel, wanted the husband to vacate the marital home. Counsel for Wife A, who acted more as a coach, waited for mediation to work, and that resulted in the husband voluntarily leaving the house. Counsel for Wife B, acting more as an advocate, filed a motion to vacate without notifying the mediator or giving the parties time in mediation to agree on when and how the husband would move out. The motion was denied, and the disgruntled client ultimately fired her attorney.

It can be very difficult for attorneys to give up control of the process, as is required for mediation. But understanding their distinct roles helps lawyers and mediators to communicate effectively, which in turn produces an informed, cooperative course of action. In a practice area where emotions often run high, a satisfactory outcome achieved through amicable resolution of the issues greatly benefits both clients and lawyers.

Ideas in this article derived from a panel discussion sponsored by the Massachusetts Council of Family Mediation. Special thanks to Joanne Romanow, Esq., and mediators Mary Johnston, Julie Ginsburg and Diane Neumann.