Lawyers who are representing clients in divorce mediation, sometimes for the first time, ask divorce mediators: what are we supposed to do? We introduced this subject in our last entry. Here, we discuss the role of counsel in lawyer-assisted divorce mediations. A lawyer-assisted mediation is one in which clients have counsel with whom to consult before and after divorce or other family law mediation sessions, but attend the mediation sessions alone; in finalizing agreements reached; and addressing court processes.
These lawyers fulfill the traditional role as educator, describing the law, information gathering and disclosure, potential outcomes in litigation and the ranges of reasonable results on the issues at hand; and as counselor, in considering strategic approaches. How then, are these traditional roles played differently in lawyer-assisted divorce mediations, as compared with litigation or lawyer-led negotiations?
First, divorce counsel must recognize that the lawyer’s role is a support one, and not that of the client’s leading edge. Educating a client in a way that is objective, intellectually honest and direct is always ethically correct, but it becomes even more important when the client is the direct negotiator. Lawyers, who negotiate every day, may try more aggressive (often called “creative”) approaches to negotiation, knowing that they can try different approaches and re-evaluate, re-group and re-calibrate in response to push-back form the other side. For the parties themselves, sometimes negotiating for the first time, this approach can result in embarrassment, confusion, discouragement and ultimately, failure. Divorce mediation is geared to find a more direct route to the “range of reason”. Clients will have the best chance of finding that route, with the divorce mediator’s help, if given clear, reasonable and defensible objectives by counsel, that are grounded in sound information.
Second, helping clients determine the information that they need is critical. Much of the information to which litigating parties are “entitled” is irrelevant to the stakes at hand. Much of it is needlessly duplicative and/or it is marginal at best. Information excess not only clutters the thought process but it also escalates costs unproductively. So, it is critical for the lawyer to discuss with the client how to get the information that he or sheneeds, as distinguished from that which he or she could get in litigation.
Third, reviewing the events of divorce mediation sessions in a clear-eyed way helps clients to vet ideas and proposals, to make mid-course corrections and to gain confidence in their own negotiating skills and successes. Rather than inflame the situation, counsel can support the process, and with it, show respect for the client’s election to pursue it, by reviewing previous discussions and suggesting, or even role-playing, future ones with reasonable parameters.
Fourth, once an agreement in principal is reached, counsel must play the role of drafter or reviewer with care, subtlety and respect. Just as the parties have elected to find a settlement with which they both can live, and is not geared to find a “win” for either of them individually, the use of drafting to create individual victories that were neither sought nor achieved in mediation serves to undermine the parties’ free will and self-determination. Technical correctness is critical. Client protection is important. Seeking or pressing advantage is neither.
Finally, many mediation clients are intimidated at the thought of appearing in court for presentation and approval of their agreement. Unlike many litigation clients, the “final” hearing may be their first court appearance, thus, still mysterious and anxiety provoking. Preparing clients for likely delays and supporting them through court events will be critical to easing their experience in this final phase of their matter.
In our next entry, we will explore counsel’s role in lawyer-attended divorce mediation.