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Divorce Mediation Blog

DIVORCE MEDIATION: WHAT’S A LAWYER TO DO? Part 2 (Lawyer-Assisted Mediation)

Wednesday, February 13, 2013

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.

 

DIVORCE MEDIATION: WHAT’S A LAWYER TO DO? Part 1 (Introduction)

Wednesday, February 06, 2013

Lawyers who are representing clients in divorce mediation sometimes ask us: what are we supposed to do? It is an important subject matter, and one of interest to the bar, as evidenced by the inquiries that we have received.

It is entirely understandable for divorce lawyers to question their role in this process because lawyers are taught from the day they enter law school (and from exposure to our culture long before) that lawyers are required to provide zealous representation for all clients, divorce and family law parties included. This notion is embodied in many codes of ethical conduct and it denotes fighting for one’s “rights”, or less dramatically, working to get the best possible outcome for the client.

Yet, divorce mediation and other family law mediation matters, are not geared to getting the best possible result for either party; but one which both understand fully, and one with which they both can live, while doing as little damage as possible to the functional relationship of the parties (in some cases improving it perhaps) and minimizing the damage to their collective finances. In some cases, we even find ways to “expand the pie” and find a beneficial outcome for both parties.

So, how is a lawyer working with a client who is not looking for zealous advocacy and actively does not want it, supposed to function? In the next two entries we will discuss this question in two contexts: the lawyer assisted-mediation and the lawyer-attended mediation. (In earlier entries, we discussed this distinction at some length, and we invite you to review those pieces, too.)

 

Divorce Mediation and Arbitration Hybrid

Thursday, October 18, 2012

We have recently encountered an interesting model for a hybrid dispute resolution process. It resulted from discussions with two family law attorneys who were motivated, along with their clients, to try hard to achieve a facilitated settlement, while avoiding the use of public trial in court, in any event.

The parties engaged both of the principals of LDRC to work on the case. They agreed to have their lawyers begin by informally presenting the essential agreed and disputed “facts” to one of us for an evaluation of strengths and weaknesses, followed by mediation. Failing settlement, the parties would then present the key disputed facts to the other LDRC principal, as an arbitrator, to decide and settle the key points presumed to be the root of the parties’ impasse. In the interim, the principals would not discuss the case with each other, at all.

With these key facts no longer at issue, the parties would return to work with both principals, now as co-mediators, bringing all perspectives possible into the mediation room, or quite likely, rooms (the mediators “shuttling” between each party-lawyer team). In the absence of resolution, the mediators would change hats, and simply decide the case as arbitrators.

We believe that this promises an efficient, fair and final process.

 

A Workplace Mediation Reflection

Saturday, October 06, 2012

We were recently speaking with our friend and fellow mediator, Josh Hoch of Mediation Works Incorporated (MWI) about his activities regarding mediation in the workplace. We have not engaged in this important activity ourselves, but we find it to be a practice that merits some reflection visa vis our largely family law mediation and arbitration practice.

In divorce mediation, our role is to facilitate negotiations between two legal equals. Certainly no two spouses are identical in intellect, knowledge, emotionality or personality, but they nonetheless enjoy equal status under the law. Not so necessarily in workplace mediation. Work with peers in conflict may be analogous, since their places in the corporate family are more or less equal. But, what of mediation between those in a supervisory relationship with one another?

These protagonists are human equals, but not organizational peers at all. So, how does a mediator facilitate negotiations between people or are expressly unequal? Does the mediator try to level the playing the field between the two so as to create a moment of peerage; or does he or she leave inherent inequality unaltered and intact and simply play the role of critical listener, summarizer, re-framer and brainstorming collaborator?

We will follow up in a later entry.

 

MA Bar Association Family Law Section Council Approves Proposed Family Law Arbitration Act

Monday, April 30, 2012

The Massachusetts Bar Association Family Law Section Council has approved the proposed Family Law Arbitration Act that LDRC's William M. Levine presented to it on behalf of the Massachusetts Chapter of the American Academy of Matrimonial Lawyers. Bill will appear before the M.B.A.'s House of Delegates to advocate for the proposed legislation on May 17, 2012. The House of Delegates decides, on behalf of M.B.A, if it will support submission of the potential state law to the Massachusetts legislature.

 

Divorcing Parties Playing Against Type - Don’t Do It

Wednesday, April 04, 2012

Recently, we spent a Sunday evening at a new Easthampton, MA business: a “free movie” venue called “Popcorn Noir”. This creative venture offers gourmet popcorn, snacks, dinner, hot cider; and intimate seating for 20 or so lucky viewers. Members pay a modest annual fee to have access to this storefront treasure with vintage films.

We watched the Billy Wilder-directed Fred McMurray and Barbara Stanwyck classic “Double Indemnity”, from 1944. A film student introduced the show with the comment that one thing that made this noir piece so effective was that every actor played “against type”. For those of us who grew up with McMurray on “My Three Sons” (most of us) knew exactly what she meant. She also described the coming feature as a tale of three people enmeshed in a spiral of events of mutual destruction, leaving them all dead.

This all got me thinking (after the show) about divorce mediation! Divorce lawyers like to tell prospective clients that criminal lawyers see bad people on their best behavior while family law clients are “good people at their worst”. This cliché is largely geared towards providing cover to the upset spouse for out-of-control feelings and decisions, but there is also truth to this stereotype. Many people react to the crucible of stress, worry and fear of impending divorce in ways that lead them to make quick decisions that yield far-reaching and long-term effects on families, sometimes quite negative. As friends and family urge the spouses to “protect” themselves (and their children) from each other, they are often inclined to accept the most aggressive lawyers and advice, and the most assertive processes that they can find..

Sometimes this advice is absolutely on the mark, and there is no good choice but to lawyer up and get to court. But, too often, this just sets a tone of heightened confrontation, crushing costs and lost years of litigation, when calm reflection and facilitated discussion might serve the family more effectively, leaving people in a place where their ability to cooperate is less damaged and sometimes even enhanced. There is a reason that the Massachusetts Supreme Judicial Court requires lawyers to discuss alternative dispute resolution options with clients before filing suit,. But we suspect that this rule is honored far more in the breach that in its careful and enthusiastic observance, as many lawyers perceive litigation as the “only way” to go.

Good people in crisis should not play against type. Beginning divorce with an arms race when unnecessary consigns the family to a spiral of controversy and financial calamity, when reflection and facilitated negotiation are likely to be less expensive, less antagonistic and more constructive than the alternative. Divorce does not have to be all noir. It can be seen as a transition: to be managed and experienced as an honest, direct and personalized process in which people “play” themselves, and not the mythical “worst behavior” caricature.

Mediation is not for everyone. But, almost everyone should at least consider it – seriously.

 



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