Why would an attorney refer a case to mediation? As the public learns about mediation an increasing number of potential clients are asking their lawyers if they can help them through the mediation process. Attorneys have all had clients who want nothing more than:
· to get the divorce over with quickly;
· what is fair
· to keep the hurt to a minimum
· to be able to continue to raise children with the other party
· to limit the time and the money invested in litigation
· to have control over the outcome
· to stay out of court
Or you may have the client who wants his or her “day in court”. As attorneys, we know that day is not going to be the opportunity to rant and rave about their spouse’s many sins. These cases can be the most difficult because of the level of emotion and because you and your client have differing goals. Mediation can provide the venue to express some of that anger so that the client can put it behind him or her and move on. (Mediation can sometimes get this client into therapy or counseling to help with the negative feelings associated with the marriage and its demise.)
People want the benefits of mediation. Follow-up work with clients who mediated their cases shows that they are so happy that they were able to make their own decisions and to have the opportunity to work things out themselves that they strongly support mediation even if it was not entirely successful.
Mediated cases are lost business. To the attorney who has had little experience with mediation the first concern is often that the mediator is getting all the fees – there is no money in the case. The “attorney/coach” has a viable role in a mediated case and you may find that your time will be billed out for less stressful and more satisfying work. Clients who are getting what they want are happier clients. Happier clients are easier clients. (You are correct, however, that you are not likely to make as much money on each individual mediated case as you would if you litigated that case.)
If you successfully coach your client through the mediated divorce, he or she may be so pleased with the result that you will be getting a new type of referral. Happy clients refer other clients. If the mediator finds out that you will work with the mediation process you may find yourself on the mediator’s “Mediation-Friendly Attorneys” list. (An Iowan judge I know who is also a mediator once said that “The good attorneys will always have cases – they needn’t be threatened by mediation.”)
You have a case with a client in mediation – now what? First, make certain that your fee agreement is clear that the nature of your role is limited. (The pertinent part of a sample fee agreement is appended to this article.) You still have a significant role that will include providing some or all of the following services:
· You will help your client have an understanding of basic divorce law, procedure and discovery in Pennsylvania and the particular court in which the client would proceed with a litigated case. You will inform the client that support guidelines exist but understand that mediation usually doesn’t rely upon guidelines to determine support. You may advise that initial relief is necessary to protect his or her interests – you should advise your client that that issue (often freezing the assets) should be the first subject addressed in mediation.
· Give him or her an objective evaluation. Use your initial consultation as an opportunity to establish a trusting relationship. The client needs to trust not only that you are knowledgeable in the area of law and will provide your best advice but also that you will support the mediation process.
· Review your client’s agreement to mediate with him or her. Make certain that, for example, if you recommend filing the complaint for divorce right away, that you are not advising your client to breach the agreement – it may include a provision that neither party takes any unilateral actions while the parties are in mediation.
· You should be available for consultations with your client from time to time throughout the process. .
· Mediators focus on the clients’ needs and concerns. It is appropriate for you to help your client identify and articulate his or her needs and concerns. (This is not the same as “wants”. Starting out taking positions and making demands polarizes the parties and so is avoided.)
· You may have to help the client know what information to request for disclosure purposes and to evaluate documentation once it is received.
· You may have to help your client identify assets and liabilities and the valuation issues. Remember that, in mediation, the clients are free to use whatever valuation dates or methods they want. It is your job to help your client understand the ramifications of the decisions he or she is making
· There is likely to be a need for experts in the case – you can help your client select those appraisers, tax specialists, psychologists, estate planners, or other outside help, as needed.
· Reality check: You may have to help the client understand that a position he or she is taking in mediation is unrealistic or unworkable and help formulate a more appropriate approach.
· Your client may ask you to help generate options to meet the other party’s needs. Mediation looks for a win-win result so look for ways to address the other person’s concerns while meeting your client’s as well.
· In some cases you may attend some or all of the mediation sessions when, for example, complex issues are being discussed. (That is not appropriate without the agreement of both parties and the mediator.)
· A problem with the case is not an excuse to terminate mediation. You will have to return your client to mediation to handle a problem after you have had an opportunity to review it and possible solutions with the client.
· You may find that your client is having a hard time expressing his or her concerns or protecting his or her interests. A conference call with the mediator and the other attorney might be the best way for you to explain the situation and work out a way that the client can get his or her message across while staying in mediation (assuming that is what the client wants). When communicating with the mediator, remember that the mediator has neutrality and confidentiality concerns.
· You will either write agreements reached in mediation or review the agreements written. If there is a problem in the agreement it is your role to explain it to your client and then return him or her to the mediator to resolve it.
Family mediation focuses on needs and interests of the parties and their families rather than on entitlements. To attorneys that feels very different from the litigated cases. However, all attorneys have had clients for financial or other reasons decline to appeal a decision the attorney is confident would be reversed (and thereby give up their rights). As attorneys, we are used to calling the shots; our mediation clients tend to be looking for self-determination. In this role as attorney/coach the attorney has to be satisfied educating the client and letting him or her make the decisions. Those decisions might not reflect the way a court might treat a case. But that is the informed client’s right.
To whom do you refer your client now that you’ve jumped on board with this concept of mediation. It is best to get to know the area mediators before you are in the market for one. Some mediators are particularly good with custody cases, others with complex financial situations. Some mediators are comfortable working with cases in which there has been a history of abuse, others won’t touch those cases. If part of the fact pattern in your case includes recovery from drug and alcohol abuse you will want to find a mediator familiar with the associated problems. In a difficult case you may want to refer your client to an attorney/psychologist mediator team, one male and one female. This might be the case if neither party trusts a mediator of the opposite sex – or would simply feel more comfortable if both genders are represented on the team.
Mediators and attorneys are working together better than ever. Too often in the past mediators have not supported their clients’ working closely with their lawyers because too often in the past the attorneys have tried to undo the mediators’ work because it didn’t reflect the lawyer’s perception of their client’s rights. There is increased cooperation, however, as mediators understand that their clients should understand what rights they may be giving up just as the attorneys are learning that the client is entitled to give up rights.
ã Susan V. Edwards, 2001