Can promoting mediation advocacy and lawyer participation be a reality in family law? I’d like to think so.
The Adrgroup.co.uk offers a training program that caught my eye today on Mediation Advocacy. The focus is for those that are representing clients at mediation. I love this idea! (See the program here https://www.adrgroup.co.uk/Training/mediation-advocacy).
Between changes to the Divorce Act and the Covid-19 backlog, alternatives to the traditional court model are not only needed, but expected.
BUT as needed and expected as they may be, we can’t assume that those lawyers who didn’t support mediation pre-2020 will now embrace it.
Some will never be supportive and that’s ok.
There is a need for pure litigators and those who excel at lawyer-lawyer negotiations.
Others may be suspicious or unfamiliar with how they fit into it and how it benefits their clients.
Please read on and allow me to shed some light.
While others may have had a negative experience with it and make excuses based on that experience.
For this, I apologize. As with every profession, there is good and bad. A starting point is working with an appropriately trained, experienced, and certified mediator.
Then there are those lawyers who have and continue to be supportive of mediation.
I would ask that you help advocate with your colleagues for mediation in family law cases when appropriate.
As a lawyer, being supportive of mediation provides you with a variety of options. It’s not all or nothing. You can use mediation for a single issue, multiple issues or even all issues. In the case of a single issue, it often helps to move a case along much more quickly.
It can be used in various situations, including to resolve pre-marriage issues, during separation, or post-divorce. Mediation helps with parenting plans, process decisions, and financial disputes. It also supports a variety of agreements, including pre-marriage, marriage, cohabitation, separation agreements, amendments, powers of attorney and wills.
You can choose to:
- Refer Out with no participation in the mediation, and client returns for preparation of a legally binding agreement based on a Memorandum of Understanding.
- Refer In with partial participation, selective participation in meetings based on the issues.
- Refer In with full participation, full support of client during the entire process.
I support all three options, but I tend to see lawyers referring out to mediation instead of participating in mediation with their clients. It may appear to save money but what happens in practice is:
- Decisions can’t be made in mediation as follow-up is needed with clients and their lawyers (adds cost and time delays).
- Clients misunderstand their rights and obligations or intentionally misrepresent their legal position (adds costs and jeopardizes the mediation).
- Decisions made in mediation are then not supported by lawyers after the fact (adds cost, time, and frustration of going back over issues the clients thought were resolved).
I have always been a proponent of 5-way mediations, or mediations with the lawyers present, at least for some of the more contentious or complex issues or for certain clients. My experience is that this type of mediation moves issues forward effectively and provides much-needed legal support and confidence to clients. It is an excellent alternative to both court and collaborative.
See my blog post from 2013 supporting 5-way meetings https://familiesfirstmediation.com/5-way-meetings-a-successful-solution
The Benefits to Your Client
- They will be prepared and supported by you in mediation.
- They can be empowered to participate in some meetings on their own.
- It’s confidential.
- It provides a safe space for emotion and non-legal issues.
- They receive ILA throughout the process.
- Mediation can result in a settlement agreement vs. a memorandum of understanding.
- The Mediation Agreement provides a pause in progressing any court proceedings or initiating them.
The Benefits to You
- Mediators are screening your clients for forms of family violence and power imbalances.
- You gain valuable insight into the needs, wants, and values of your clients, and their ex-partners which is fundamental for helping settle their case (and realistically for next steps if mediation fails)
- You can participate and be creative in planning the mediation. From virtual or in-person, shuttle or joint, timelines, documents to be provided, and whether to schedule a pre-mediation with lawyers only (think similar to a pre-arb meeting).
The Benefits to Both You and Your Clients
- The mediator can help with power imbalances that occur between lawyers (Yes, I think we can acknowledge this occurs).
- Based on intake meetings we can structure the mediation that is the best fit for all participants.
I believe that collectively, we need to be inclusive of the various options clients have for resolving their family matters. These options don’t have to be either/or scenarios between lawyers and mediators but can offer solutions that benefit the client by combining our skills, strengths, and experience.
I will continue to say this out loud and to anyone who will listen – lawyers can and should be welcomed and included in the mediation process.
For interested lawyers, my door is always open to help you develop your role in advocating for mediation, to help you better understand the process, select a mediator, or answer a question you may have. Please don’t hesitate to reach out.
