THE ROLE OF THE ATTORNEY IN MEDIATION

BY

HOWARD W. BROECKER

This publication is a product of ITSDIVORCE™

All Rights Reserved

 

I.  Introduction

 

Why should a successful matrimonial litigator take any interest in the mediation process?  How will it affect his or her income?  Will clients rely on the mediator’s advice and counsel rather than the attorneys?  Will the clients’ interests be adequately protected in the mediation process?  And what will the role of the attorney be in the mediation process?

In the early 1900's, Mahatma Gandhi, one of the great conciliators of his time, articulated his belief that “the true function of a lawyer is not to exploit legal and adversary advantages, but to promote compromise and reconciliation.”          Can lawyers practicing almost 100 years later find the truth in these simple words?  This article will address these and other relevant concerns.

There is confusion and uncertainty regarding the role of a lawyer in the mediation process.  This role varies based upon the type of the mediation model and the experience of the mediator involved in the process.  Mediators frequently disagree concerning the role of the lawyer.  Mediators need to understand the importance of an attorney’s participation in the divorce mediation process as opposed to a mental health professional, e.g., a psychiatrist, psychologist or social worker.  Psychiatrists, psychologists and social workers are not qualified to provide legal advice or information.  It is, therefore, preferable that lawyers/mediators be involved in the divorce mediation process as distinguished from individuals from other disciplines.  An exception to this may apply in cases involving child custody or visitation.  If lawyers refuse to recognize and participate in the mediation process, this important role will be left to others less qualified.

    II.   Winning at All Costs

Contemporary trial lawyers seem preoccupied with the notion that they must win at all costs.  The usual explanation given for this attitude is that economic pressures have driven lawyers to be extremely aggressive about winning at any cost.  But there is more to it than that.  When a litigator sends a knowingly burdensome discovery request designed to intimidate the other side, it signals a return to barbaric times when litigants were subjected to trial by ordeal.  This return endangers the very ends the legal system seeks to achieve.  If we as lawyers permit winning to supplant a just solution, then anarchy, the law’s great enemy, will follow as all sides do whatever is necessary to win.  If lawyers continue to be focused on “winning or losing”, the public’s perception of the legal process will continue to erode.   The terms “adversarial” and “litigation” generally connote hostility and strife.  Is it time, therefore, to consider alternatives to the adversarial system?  Lawyers are aware that litigation often exacerbates conflict.  This is particularly true in matrimonial cases where no matter how closely the litigation is monitored or how open to compromise the parties may be, the litigation can proceed like a forest fire out of control.  The question which we must all address is whether there is another process which will provide each party with an opportunity to present its side of the dispute persuasively with a view toward a mutually-beneficial solution.

III.      The Mediation Process

This section will discuss various alternatives to the litigation process as well as the role of an attorney in the divorce mediation process.

The role of an attorney in the divorce mediation process is complex and varying.  Section 1.4 of the American Academy of Matrimonial Lawyers Bounds of Advocacy provides as follows

1.4     An attorney should be knowledgeable about alternative ways to resolve matrimonial disputes.  Commonly employed means of alternative dispute resolution include mediation, negotiation, non-binding arbitration, and intermediation.

Prior to understanding this process, it is essential that lawyers understand the various types of mediation which are utilized in divorce matters.  These types are as follows:

Pure-form mediation.  Traditionally, the pure-form type of mediation involves three participants:  the mediator and the two parties to the dispute.  Generally, lawyers are not involved in the actual mediation session.  Pure-form mediation places the parties directly into the process, its goal being a means of reaching compromise with the active, direct participation of the parties.  The role of the lawyer in this pure-form type of mediation shifts from that of an adversarial representative to that of a consultant or advisor.  This shifting of roles is confusing to some lawyers and casts doubt concerning the role of the attorney in pure-form mediation.  Advocates of the pure-form mediation process feel that it has the following benefits:

a.       Reduces the level of acrimony and results in a more positive emotional experience for the parties;

b.       Is less expensive and less time consuming;

c.       Is a more creative, flexible and suitable process, especially in cases involving child custody.

d.       Provides participants with an opportunity to vent emotion with the knowledge that someone is listening sympathetically.

Pure-form mediation with attorneys.  This process is similar to the above with the exception that lawyers participate in the actual mediation process.  Some advocates of mediation discourage this form because they feel parties are more inhibited and less able to share their true feelings when their attorneys are present.  In addition, they feel that lawyers engage in unnecessary adversarial posturing and rhetoric instead of permitting their clients to negotiate and compromise through their direct and active participation.

The clients’ interests are best served in situations in which substantial and complex legal issues are involved if their attorneys are present while these issues are being discussed.

The benefits to this form include the following:

a.       Enables participants to confer with their respective attorneys regarding legal issues arising during the course of the mediation process.

b.       Affords confidentiality and imposes limits the scope and duration of discovery.

c.       Provides opportunity for attorneys to evaluate with their clients the strengths and weaknesses of their respective positions.

Caucus form mediation.  In this type of mediation, the parties are each represented by attorneys and are segregated into separate rooms with their respective attorneys.  In this process, the mediator shuttles between the parties in an attempt to find a common ground for settlement.  The advantage to this type of mediation is that each party is represented by independent counsel and has the benefit of professional advice and counsel during the course of the mediation.  Proponents of pure-form mediation feel that the caucus form (or settlement conference) is not true mediation since the parties are less involved in the active, direct process of negotiation and compromise.

IV.      Mediation and Arbitration

The basic approaches to dispute resolution can be categorized in two basic ways:  Either the parties decide or a third party decides.  When the parties decide, they have reached a negotiated settlement.  When a third party decides, they have adjudicated.  A third, hybrid approach is to have a third party advise the parties what to do.  This process generally involves a mini-trial, court settlement/conferencing, arbitration, or mediation.  The primary difference between mediation and arbitration is that arbitration is generally binding, while mediation is non-binding.

Any dispute can be mediated.  Mediation is a natural process used by people in everyday situations.  A professional mediator is likewise motivated to "succeed" at what he or she is retained to do; i.e., to help the parties reach an agreement.  A mediator's professional reputation is extremely important to the process.

The decision to mediate/arbitrate grows out of the manner an attorney views the case and his or her own role in representing a client.  After years of traditional adversarial litigation, more attorneys are realizing that the available legal remedies are often limiting and that the system is often unresponsive and too costly.  Many attorneys are concerned that these flaws will effectively deny clients the benefits to which they are due.  As a practical solution, counsel must use their knowledge and expertise more creatively.  Today's trial attorney must be at the core a problem solver.  Counsel should examine a case at the start and make a preliminary decision whether or not a better  result can ultimately be produced through negotiation.  Early evaluation is particularly important as clients become more sophisticated and demand ways to minimize the expenses associated with legal representation.  To develop an effective negotiation strategy, counsel may focus on the following:

                    a.       How the opponent views the case;

b.       Upon what assumptions, evidence and legal analysis that view is based;

c.       What motivates the individual authorized to make the ultimate decisions for the opponent;

d.       What factors might influence his or her perspective;

e.       What it would take to change his or her perspective.

There are a number of reasons why mediation/arbitration often succeeds when face-to-face negotiations have failed.  Most face-to-face negotiations are conducted solely between counsels without direct involvement of the parties.  It can be difficult for counsel, in the midst of combative litigation, to change gears and dispassionately work for a mutually-beneficial solution.  Mediation, on the other hand, provides a neutral setting for the negotiation, with expert help in reducing the level of emotion that most disputes generate.  It also provides an opportunity for each party to present their side of the dispute persuasively to the decision-maker on the other side, as well as their counsel.  Finally, in the confidential caucuses, parties and counsel become more candid and more reasonable.  The integrity of mediation and the mediator's neutrality seem to reduce the posturing and haggling that so often doom face-to-face negotiations.  Mediation also allows all sides to succeed when the eventual agreement emerges without attribution through confidential caucusing, no advocate is put in the position of having to acquiesce to a position proposed by the other side.  All sides can achieve peace with honor.

Many attorneys who have practiced litigation for any length of time have found that litigation is neither the most direct nor efficient process to resolve a dispute.  Experience shows that the usual work, done in the usual way and over the usual time, usually results in settlement of the case at the "courthouse steps" before trial.  For these cases, mediation is often a better way to obtain the same result.  Traditional litigation is expensive and its costs are burdensome to all parties and in all types of cases.  With the increasing complexity of discovery and pretrial practices, taking a case on a contingency basis is often prohibitively expensive for an attorney.  This situation is no better for defendants whose counsel usually charge by the hour.  By the close of the trial, the defendant may have spent more in defending the case than it was worth in total settlement value.  Clients often experience mediation, regardless of their level of active participation, as having their day in court.  This affords satisfaction at a much lower cost than traditional litigation. 

When settlement is the objective, two tests for "likely success" may be applied:

a.       Do the parties have a good-faith interest in settling:

b.       Do the parties and their legal representatives know enough to negotiate intelligently.

A stalemate does not necessarily indicate a lack of good-faith interest in settlement.  The breadth of difference between parties is far less important than whether or not both sides acknowledge that their respective interests would be best served if some resolution could be reached.  For example, many disputes have been mediated where, at the outset, the parties declared that their differences were too great for mediation/arbitration to have any hope of success.  If there is a mutual apparent good-faith interest in attempting to settle, irrespective of the size of the gap between the parties' positions, mediation/arbitration should be given a chance.

Some counsel shy away from mediation thinking that because it is not "final and binding", it is not worth the effort.  Mediation can be final in a way court decisions cannot be, because the parties reached an agreement that meets their needs, thus it can be as binding as any contract.  Moreover, mediation allows the parties the opportunity to fashion and control the outcome of their dispute rather than relying upon some third-party decision-maker (either a judge, arbitrator or jury) to dictate binding results.  The non-binding nature of mediation also makes it easier to persuade the parties to a dispute to come to the negotiating table secure in the knowledge that it is a risk-free opportunity with virtually no downside for anyone.  For some parties, a mere chance of settlement through mediation is not enough.  They prefer not only the possibility of a potentially mediated settlement but also the threat of a binding decision if the matter is not settled.  For them, additional new forms have been developed.  "Med/arb," for example, attempts to integrate the processes of mediation/arbitration so that, if the designated neutral acting as a mediator is unable to resolve the case through settlement, he or she is then empowered to issue a ruling binding upon the parties with the same force and effect as an arbitration decision.  The following are some guidelines for determining whether a case is appropriate for mediation:

a.       Are you attending the conference only to see if the other side finally wants to be reasonable and concede the merits of your case or to hear your opponent told he or she can't win?  Inappropriate case.

b.       Are you attending to find out what your opponent's case is really about or what its strengths or weaknesses are?  Inappropriate case.

c.       Do both counsel and clients appear to be seriously interested in the additional objective evaluation of the merits of the dispute?  Occasionally appropriate case.

d.       Does your opposing counsel have substantially more or less trial experience than you do but everyone seems at least willing to discuss the issues?  Appropriate case.

e.       Does either client now seem to have unrealistic expectations from litigation even if acquired from counsel?  Appropriate case.

f.        Do your feelings about opposing counsel compel you to brace yourself for argument every time you encounter him or her, or have you become so close to your client that your objectivity could be questioned?  Appropriate case.

g.       Does your client seem incapable of setting aside his emotions and hearing your logical discussion of settlement?  Appropriate case.

It should be noted, if you can determine the suitability of the case for the settlement process and can review the settlement conference process with clients prior to the actual conference, the chances for a successful resolution of the case are greatly enhanced.

In any of the above models, there is a concern about whether adequate information is being provided to the parties.  Clients participating in mediation must assess the type of compromises they are willing to make, and should do so with an adequate information base.  As a result of these concerns, many mediators have recognized the desirability for parties to be represented by independent counsel during the mediation process and have acknowledged that lawyers have an important and essential role to play if knowledge of legal rights is to be an ingredient of the mediation process.

In all forms of alternative dispute resolution, it is desirable that lawyers be at least tangentially involved in the process for the purpose of providing legal information and counsel to assure that legal issues have been properly addressed during the mediation process.  In the pure-form type of mediation, the parties generally involve their attorneys to provide advice and counsel between mediation sessions and at the end of the process to review their agreement and draft a final written agreement.  In the caucus form of mediation, attorneys are involved in the mediation process to help to shape the process and to provide continuity so that there are no "legal surprises" during the course of the mediation.

In situations where lawyers are engaged only at the end of the process to prepare written agreements, some degree of risk involved.  Many lawyers are reluctant to provide their "blessing" to an agreement with which they have had limited input into the actual negotiations.  In addition, this type of involvement may increase the lawyer’s risk of professional liability if the parties have not been adequately advised of their legal rights or adequate discovery has not been completed.  For these reasons, it is imperative that we, as lawyers, adopt clear and definitive guidelines clarifying the role of the advocate in the mediation process.  A great deal of work needs to be done before mediation can be developed to its full potential.  The organized bar needs to conceptualize and develop clearly defined roles for lawyers in the mediation process as well as clearly defined ethical standards for the effective practice of mediation by attorneys.

If we fail to do so, other disciplines will continue to dominate the mediation practice and the effectiveness of the traditional litigation system will further decline.  The following are some observations concerning the current status of the mediation process:

a.       The public is becoming increasingly more concerned about the cost of divorce litigation and of the inability of the traditional adversarial system to resolve issues;

b.       Litigants are becoming disenchanted with the role lawyers play in the adversarial process;

c.       Parties are insisting upon participation in some form of non-binding mediation as an alternative to the adversarial process;

d.       The role of lawyers in the mediation process needs to be further developed and defined;

e.       Lawyer/mediators should be used in divorce mediation as distinguished from mental health professionals; and

f.        Power imbalances may result during the course of the mediation process which must be recognized by the mediator and dealt with by the mediator and the parties' attorneys.

g.       Both parties should in some form be represented by attorneys in the mediation process in order to assure that their legal rights will be protected;

h.       That in matrimonial matters, the traditional adversarial system will be replaced by some alternative method of dispute resolution.

In conclusion, it is imperative that we, as lawyers, recognize that the mediation process is being utilized more and more in the resolution of matrimonial matters.  We can no longer bury our heads and refuse to recognize this trend.  On the contrary, we need to develop mediation and negotiation skills and encourage our clients to attempt to resolve matters using these skills rather than automatically resorting to the adversarial system.  If we fail to accept this challenge, the mental health professionals and other disciplines will continue to dominate the divorce mediation process and further attempt to limit lawyers' involvement in the process.  We, as lawyers, have a responsibility to both our clients as well as society in general to be innovative in developing new and more efficient ways of resolving disputes.