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.