Working with Attorneys in Divorce Mediation
When I did my first divorce mediation in 1979 (custody and visitation), I had no legal background and none seemed necessary. As I became more involved in mediation in the 1980's, it was common for attorneys and mediators to view each other as adversaries.
Mediation in the 1990's
Mediation is finally catching on. More family law attorneys have been
trained in mediation and some mediators have become attorneys--including
myself. Now mediators routinely refer their clients to attorneys for consultation
and review of documents. Also, more attorneys are referring their clients
for mediation.
Two years ago I met Woody Mosten at an advanced divorce mediation training at Pepperdine University. His book, The Complete Guide to Mediation: The Cutting-Edge Approach to Family Law Practice, is the best overall guide available to every detail of setting up and operating a divorce mediation practice. (Published in 1997 by the American Bar Association.) Woody expanded my thinking even further about working with attorneys in divorce mediation. The following is a brief summary of my approach to this collaboration.
Consultation and Review
At the very least, it is important for anyone going through a divorce
to discuss their rights and responsibilities with a separate attorney
before signing the final Marital Settlement Agreement. No one wants to
find out a year later that they didn=t understand all their options.
While mediators may provide the parties with basic Alegal information,@ there is a limit to the detail they can provide. A separate attorney can provide in-depth advice, suggest alternative proposals and recommend priorities for one to consider in the mediation process. The most successful person is often the most prepared.
I have had mediations in which parties have brought letters from their attorneys explaining certain proposals and the legal arguments to support them. This has been helpful to the mediation process, as the parties can see the legal issues involved and weigh them for themselves. Of course, this requires attorneys who can advocate constructively without alienating the other party.
Representation by Attorneys
In some cases, parties are formally represented by attorneys prior to
and concurrent with mediation. I have had more cases recently which have
been referred by one or both attorneys. They believe that the issues can
be resolved in mediation and want to assist their clients while saving
them money and animosity.
In these cases, the attorneys often do most of the legal paperwork (filing the Petition, preparing Declarations of Disclosure, etc.). The mediator may prepare the Marital Settlement Agreement, but it must be approved by the attorneys as well as the parties. If mediation fails, then the attorney and client are familiar with each other and can more easily prepare for court.
On some occasions, I have had attorneys present during divorce mediation sessions. As in my Superior Court-referred civil mediations (where attorneys are almost always present), they can be very helpful in providing input and helping clients understand their options right away. (This may sound expensive, but it can save money in a more efficient resolution of the issues--reducing the number of phone calls and letters back and forth.)
Any hearings previously scheduled by an attorney can be continued (postponed) while sincere negotiation efforts are being made. In the event that mediation fails, the parties can use the court for the unresolved issues. I have had several cases in which the parties have returned to mediation after going to court on one or more issues.
Confidentiality
The laws governing the confidentiality of mediation have grown more specific
in 1998. (Evidence Code Section 1115-1120.) Statements and notes made
during the mediation cannot be admitted into evidence at court, absent
an agreement by the parties. Neither the parties or the mediator cannot
be forced to testify about the mediation--nor produce a report nor notes
about what was said. This encourages the fullest discussion possible for
settlement in mediation.
Confidentiality does not exclude parties from talking with their friends, family or attorneys-- it just prevents them from using this information in court.
A Note of Caution
Divorce Mediation can involve hidden and complex issues of the law, so
it is best to consult a family law attorney. While many family law attorneys
are now supportive of mediation, parties must beware of the highly adversarial
attorney who wishes to take all cases to court. While the number of such
attorneys is decreasing, it still happens. As more attorneys adopt a Acounseling
at law@ approach, parties can be selective.
Conclusion
By using a mediator and a separate attorney, those going through divorce
can make the most positive and thoroughly informed decisions, while still
saving money.
© 2006 Bill Eddy. All rights reserved. Web design: Ray Adair