ATTORNEY-SUPPORTED MEDIATION IN FAMILY LAW MATTERS

By Meredith Mckell Graff

When parties mediate in their family law legal process, many times one or both parties have attorneys with whom each is working who can give him or her legal advice about the settlement issues and proposals. Unlike other types of mediation, such as business or personal injury mediation where the attorneys accompany the parties to the mediation and are part of the mediation process, family law mediators generally prefer to mediate without the parties’ attorneys. This article is to help parties and their attorneys know how to have a successful mediation of a family law matter.
First, it is very helpful for each party to prepare, with the help of their attorneys, a financial statement of their income(s) and monthly deductions using their wage stubs as a guide. When people earn a variable amount due to commissions or bonuses, generally the income is averaged over the course of the year or even two years to get a more realistic picture of the projected future income. In addition, each party should prepare a budget showing each party’s current expenditures and projected future expenditures, if the expenditures are likely to change. Reasons for this might include living in one’s own residence, rather than residing with a friend or family member, or changing jobs.
Second, each attorney should talk to the attorney’s client about the issues to be mediated and counsel the client on the “best case” and “worst case” for every issue so the client has a realistic idea of what the court could order if the parties are not successful in mediating their issues. It is very unhelpful for the mediator when parties come to mediation with an inflated idea about what he or she is entitled and likely to receive from the court in a litigated process. Many attorneys like to tell their clients the “best case” because it makes the lawyer look like a hero to the client but this often backfires when the court orders something less than what the party’s attorney has “promised.” Mediation is most often successful when each parties’ attorney provides his or her client with an unvarnished view of the “best alternative to a negotiated agreement,” otherwise known by the acronym, “BATNA,” which represents what the court is likely to order if the parties fail in their private negotiations in mediation.
Third, the attorneys should debrief his/her clients after the mediation to find out what transpired, whether the parties made any agreements, whether there were offers on the table that had not been accepted yet, whether it would be prudent to make an offer to settle. An attorney who supports the mediation process understands that the best position the attorney can have is to support the mediation process and encourage settlement. Surveys of mediating parties after their legal matter has been resolved show that people are more likely to keep their agreements when they had a hand in making the agreements. Not only that, but people are more likely to come back to the mediation process to resolve any future issues arising out of the original successful mediation, such as revising a parenting plan or reviewing child support.
Fourth, attorneys can be very supportive to the mediation process when they learn information that has not been disclosed by the other party in mediation. Rather than impasse the mediation and rushing to court, the undisclosed issues can be raised at the mediation table and worked through to resolution. The process of mediation requires complete honesty and disclosure of everything relevant to the legal issues being mediated. When a party has not disclosed something, before the other party rushes to court, the non-disclosed issue can be raised at mediation and many times resolved. In some cases, the non-disclosing party is not aware that the issue is relevant to the mediation. In other cases, there is intentional failure to disclose. In any case, talking about the issue and making it part of the agreements is the best way to resolve it. Going to court only starts an adversarial process, increasing the conflict, which usually does not return to a mediated process.
Fifth, many attorneys have an idea that encouraging mediation will result in fewer legal fees for litigation. While it is true that a mediated process generates fewer legal fees than an adversarial process, parties prefer the more peaceful process and the satisfaction after the case is completed is much higher. Parties are more likely to refer new clients to their attorneys when they think that the attorneys will use the mediation process to resolve the legal issues. It is often hard for attorneys to realize that their clients do not share the attorneys’ enthusiasm for the court process. Most parties sitting in court waiting for their case to be called would prefer to be anywhere but in court. Parties appreciate the peaceful, less expensive, and private nature of a mediated solution to their legal issues.
Finally, even though paying attorneys and sharing the cost of mediation is more expensive than paying just for an attorney, the extra expense is still less than a litigated process. Not only that, but the emotional cost for litigation is often higher than the financial cost. Being able to resolve issues peacefully in a private setting, all the while having the support of an attorney who believes in the mediation process as an effective method to resolve legal issues, is less expensive than a litigated case, as well as providing the clients an option that is more comfortable in an emotionally charged situation. In addition, sending clients to mediation pays dividends to the attorney in future referrals from satisfied clients.

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