Mediation: Overcoming Obstacles to Settling Family Cases

These days, mediation is popping up all over the place. There are mediators handling sports-related disputes, shuttling among troubled governments in the world's hot spots, and working behind the scenes in regulatory and public policy negotiations. Mediation is even being touted by some as a panacea for the problems in litigation, especially in family cases.

Mediation is no panacea. There is no panacea.

What is appropriate for one case will not be appropriate in another; what is appropriate in a given case may change over time. Recognizing this, Virginia's proposed Model Rules of Professional Conduct require lawyers to advise their clients, both at the start of the representation and throughout the life of the case, about the availability of mediation and dispute resolution processes that might be appropriate to the client's goals. Thus, it appears that domestic relations lawyers will have an incentive to consider the use of mediation in many, if not most, of their cases.

But the real impetus for lawyers to talk with clients about mediation does not come from the Model Rules. It comes, instead, from a recognition that mediation provides opportunities for couples going through a divorce to move beyond the traditional, adversarial, and even antagonistic approach that many divorcing couples experience. It can also come from the sense that many lawyers' clients will be better served by the appropriate use of mediation.

Mediation is a structured process of dispute resolution that provides lawyers and their clients with a series of opportunities to deal with the obstacles they encounter as they attempt to settle cases. Some of the obstacles stand in the way of the lawyer; some stand in the way of the client. In either case, mediation may offer solutions to commonly-encountered problems and, while not a panacea, has a profound impact on how lawyers and divorcing clients resolve divorce issues. Here are some examples of the obstacles, as well as the opportunities for solution that mediation offers.

Obstacle: The client has an unrealistic view of the case.

Opportunity: The mediator serves as an agent of reality and the client hears the other side's perspective.

Often, one of the most difficult parts of dealing with clients in domestic relations cases (and in any other kind of case, for that matter) is that they have unrealistic expectations. These expectations may be about the role of the lawyer, about how the actual process of divorce will work (and how much time and money it will take), or about the result that will likely be obtained.

From the initial consultation, the lawyer and the client have been talking about the case from the client's perspective. The client can't help it; it's the only perspective he has. The lawyer can't help it initially either; he's dealing with the only information he's been given. As the lawyer becomes more familiar with the case, however, he also learns about its weaknesses as well as its strengths, and begins to know more about the case as it will appear from the other side's perspective.

As the case moves on, the lawyer is faced with the difficult task of trying to inform the client about the downsides, while continuing to help him maintain a positive outlook.

At this juncture, the introduction of a third party neutral begins to take on huge significance. The mediator, recognized as a neutral by both sides, is in a position to listen without judgment to both parties and their lawyers. Having heard from both sides, the mediator is able to ask appropriate questions and help the parties focus on the resolution of the dispute with greater objectivity. This frees the lawyer to use advocacy skills on behalf of his client and to focus on the client’s interests exclusively.

The mediator works jointly with the parties and their lawyers to get the issues on the table. Then each side has an opportunity to evaluate the strengths and weaknesses of his or her own case, as well as the other side’s, in private caucus with the mediator. The lawyer is able to remain the advocate that the client initially retained, but can also support the mediator’s role of shedding light on the difficult issues in the case. The client has the opportunity to hear the other side, to make judgments based on the information he receives, and to benefit from open, frank discussions with his lawyer. The client now becomes more aware of the big picture and the risks of going to trial, and moves beyond the unreasonable positions he has held.

Obstacle: There has been no focus on the case yet.

Opportunity: Preparing for mediation and working in the mediation process require focus on the part of the lawyer and the client.

Being a lawyer is hard. There are lots of demands on a lawyer's time, lots of phone calls to return and lots of deadlines to meet. What happens, generally, is that lawyers focus on the case or matter that requires focus. They attend to the matter that already has a court date, or a scheduled deposition, or an upcoming mediation. Other things tend to sit until there is a lull which, for many lawyers, is infrequent indeed.

For domestic relations clients, there is usually a strong desire for movement (constant movement, in fact). They either want to be out of the marriage in a hurry because they want to move on to other things, or they have been hurt and humiliated by the other party's desire to be out of the marriage and they want it over with so that the pain will stop. They want the lawyer's focus and attention, and going to mediation is one way to give it to them quickly, with no risk and very little cost.

While lawyers certainly discuss the case with their clients over the life of the case, the intensity of focus and level of discussion tends to increase markedly as the trial approaches. Mediation gives lawyers and their clients the opportunity to have those discussions much earlier.

Obstacle: The client feels alone in the dispute.

Opportunity: The lawyer and client work closely together during mediation.

The lawyer representing a client in mediation is able to give the client undivided attention. That attention to the client's interests is perceived, correctly, as the lawyer caring about the client and working hard to get the client the best possible outcome.

One opportunity for this attention is during the private sessions, or caucuses, with the mediator. The lawyer and client share an opportunity to talk about the proposals that are on the table, to focus on the case and the desired outcomes, to explore the possible benefits and disadvantages of settling the case in mediation. In other words, they have the opportunity to work together on the case.

In addition, the client is able to see his lawyer working on his behalf. Often the work that lawyers do is not observed and, therefore, not truly appreciated, by the client. In mediation, the client sits with the lawyer and is able to watch the advocacy and skill that is brought to bear on the case on his behalf, which increases the likelihood that the client will understand and value the contribution made by the lawyer in bringing the case to closure.

Even if the lawyer doesn't actually attend the mediation sessions, there are opportunities for developing this understanding and appreciation for the lawyer’s role in the preparation that is done with the client before the mediation, and in the actual decision making between sessions or after a tentative agreement has been reached.

Mediation has settlement rates ranging as high as 85%, so it is likely that taking a case to mediation will result in closure. Even if the case does not settle in mediation, however, both lawyer and client will have a much different understanding of each other and of what it will take to resolve the case than would otherwise have been possible.

Obstacle: Emotion arising out of marital issues clouds the decision-making process.

Opportunity: Mediation allows the parties to vent and the mediator is then able to move the parties toward problem solving.

As all domestic relations lawyers know only too well, one of the main problems in dealing with property settlement, equitable distribution, custody, visitation, and all of the other issues attendant to divorce is that unresolved marital issues are driving the decisions for at least one of the parties. That means that people are unlikely to be able to approach decision making about divorce issues the same way they would approach other decisions in their lives -- from a rational, problem- solving perspective.

Mediation can help.

First, in mediation, parties are given the opportunity to talk about some of those feelings. They are given a chance to vent, whether to the other party in joint session, or to the mediator in private caucus. This helps a lot of people get past some of the feelings, at least long enough to focus on the divorce issues.

Second, the mediator controls the process. If things get too far afield and the parties are wallowing in the marital issues, the mediator can bring them back and help them focus on the specific issues that they need to resolve.

Finally, the parties in mediation only have to deal with as many issues at one time as they can handle. One party to a divorce is almost always well ahead of the other in terms of readiness. With the help of lawyers in the mediation process, the parties can go at a pace that suits both of them. For example, they may choose to come up with a temporary agreement that will be renegotiated after a number of months.

That way, the one who's ready to move out and move on can get issues specific to the separation worked out. The one who still needs time to come to terms with the situation is often able to make this kind of temporary agreement, knowing that final decisions do not have to be made until some of the hurt and anger have subsided.

Conclusion

Mediation is not a panacea. It can, however, be an additional technique for lawyers to serve their clients better. After all, "if the only tool you have in your backpack is a hammer, every problem looks like a nail" (with thanks to Mark Twain). It's time to pick up a few more tools, expand the techniques for how clients are served, and take advantage of the opportunities that family mediation provides to overcome obstacles to settlement.

Two Key Questions About Family Mediation

What kind of family case is appropriate for mediation?

Any case in which the parties are having difficulty in settling the case, particularly in the presence of the obstacles described in this article, should be evaluated for mediation, unless domestic violence or suspected child abuse or neglect are issues in the relationship.

What is the role of the lawyer in mediation?

The two most critical roles for the lawyer are advisor and advocate. The premise of mediation is that fully-informed, well-advised people are in the best position to make decisions about their children and their own financial future. In order to do that, they need the assistance of counsel. Unrepresented parties risk entering into agreements, the consequences of which will not be clear until it is too late to change them without major time and expense. The lawyer as advisor is a critical component of successful mediation.

As an advocate, the lawyer ensures that his client's interests and goals are paramount in the mind of the decision maker. Since there is no judge in mediation, it would be accurate to think of the other side as the decision maker. Thus, it is the lawyer's role to persuade and convince the other party of the validity of his client's positions. While the focus of the advocacy shifts and, therefore, the tone does, too, advocacy is just as much a part of the mediation process as it is in representing a client in a more traditional forum.

Reprinted with permission of the Virginia State Bar