Bar News - November 18, 2011
Family Law: What Family Mediators Would Like Lawyers to Know
By: Honey Hastings
Being both a lawyer and family mediator, I regularly hear from members of each community with concerns about the other. Most of these concerns are about court-referred mediation. In preparation for this article, I emailed all family mediators and asked: What would you like lawyers to know about Family Mediation? What would you like the lawyers to do or not do? The answers I received, combined with my own suggestions, are summarized below.
One reason court-referred mediation occurs early is to resolve temporary issues. This eliminates many temporary hearings. Another reason is to divert cases to the mediation "off-ramp" before months of litigation escalate hostility and make settlement prospects problematic. If you plan to attend the mediation, send your availability dates in writing to First Appearance. If you have a reason for delaying mediation beyond the usual timeframe, send your request to First Appearance with your client. Once mediation is scheduled, if you have to change it, assemble alternate dates/times that all who will attend the mediation are available and propose them to the mediator.
Please let the mediator know whether you will attend the mediation. Several mediators mentioned that they wish all lawyers prepared themselves and their clients for mediation, as many lawyers do. One suggested, as I always do, a 3-way phone conference between counsel and the mediator to discuss the process and any issues of concern.
Advise your client of the legal basics and the range of possible outcomes. One mediator said, "I have found lawyers not informing clients of the spousal continuation health insurance law." On that issue, if your client provides family coverage, get information on after-divorce coverage before the mediation.
Preparations should include explaining the mediation process to clients so that they can know generally what to expect, including the fees for mediation. Mediators would like lawyers to encourage their client to be prepared to consider alternatives to their hoped-for outcome. We know that often seemingly intractable impasses can be resolved with creative alternatives.
If the purpose of the mediation session is to come up with a temporary parenting plan, support/alimony, use of home, and similar issues, only information related to those topics is required. But if the mediation is for final decree issues, more may be needed.
If the divorce involves a small business and the mediation is to work on property division, it would be good to have the business valuation in hand. Similarly, if the house value is at issue, please have at least a market analysis. Have the mediation scheduled appropriately or reschedule mediation if necessary (see timing, above).
Please send Financial Affidavits! The order on appointment of mediator requires Financial Affidavits seven days before the mediation.
Family mediators use various formats. Please give your mediator any suggestions or facts that are relevant, then let her mediate. The key point is that the mediator is in charge of the format. Most mediators use joint sessions, rather than caucus, unless it is shown that the joint session is not working. I am not interested in receiving mediation statements, but some mediators (generally lawyer-mediators) like them.
Communicate in advance to see what would be helpful. Proposed orders can be useful if they are close to the ultimate settlement; or consider leaving the contested issues blank. If child support is an issue, please bring (or send, if you are not attending) at least one version of the Child Support Worksheet and a Uniform Support Order.
This is not litigation. If you are going to attend, please let the mediator and the parties do most of the talking. When you participate, wear your problem-solver-team hat, not your "knight on a white horse" hat. Verbal combat with the other lawyer is not productive. Nor is condescending to those in the room without J.D. after their name. As one lawyer-mediator put it: Save the hard press arguments for court; come with an open mind; be willing to engage in a conversation in the same room with the other party and counsel.
Some attorneys don’t want parties to get into the "personal stuff" in mediation. They prompt their clients to stay on point regarding the legalistic points of the case and stop from talking about what is important to them. Mediators know that people need to get to the underlying interests/concerns/feelings before they can move forward.
One lawyer-mediator said: Mediation is the parties’ very best opportunity to unravel their own lives, and to come up with a resolution which best addresses their particular needs. The alternative to settlement is to leave their lives in the hands of some third party stranger who will make a decision that they will have to live with, based on nothing more than constrained snippets of the story of their lives.
Reviewing the Agreement
Your first involvement in the case may be to review the mediated settlement documents. The role of review/consultant attorney is crucial to inform the client of his/her rights under the law and of the most updated legal information. Mediators also welcome lawyers’ suggestions for wording if agreement is vague, too informal, or lacking some specifics.
If the mediator is doing his/her job, she has covered the issues thoroughly in the mediation sessions. The resulting agreement is often all that the attorney sees. A lawyer-mediator said, "Too often attorneys jump to the conclusion that a thorough discussion has not occurred in the mediation. I keep reminding my mediation clients that the attorney’s job is to tell the client of the outer boundaries of the law on a particular issue." Instead of saying, "You agreed to WHAT?" try saying, "Can you help me understand how this part of the agreement was worked out?"
Some lawyers find it difficult to understand how their clients benefit from mediation, versus just having the attorneys settle or litigate. Some lawyers say – either we can settle it ourselves or it can’t be settled – what good will a mediator do? Mediators would like lawyers to understand the value of having that independent perspective in the room – someone who is not tied to the outcome for any one party, but committed to the overall process. And if the parties have children together, mediation is a better model for the co-parenting decisions ahead.
Lawyers’ discrediting the mediation process is destructive and causes unnecessary anxiety for the client. Sometimes giving on one issue is worth getting something else such as peace of mind, a respectful relationship in the future with the other parent, or a financial gain somewhere else?
Do you have suggestion for mediators? What would you like them to know? What would you like mediators to do or not do? I will share your input with the mediation community.
Honey Hastings has been a lawyer for 30 years and a mediator for 16 years; she practices both in Wilton. Hastings is the author of The New Hampshire Divorce Handbook.