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Family law practitioners are increasingly finding their clients involved in mediation. Mediation has become so commonplace that it is seen by many as a component of the litigation processes as opposed to an alternative to it. In many jurisdictions, mediation of child custody issues is mandatory and so a greater percentage of clients are involved in mediation for the resolution of issues involving children. Some clients, however, also seek mediation for resolution of financial issues related to divorce. In this column we will discuss how best to represent your client through the mediation process. Many custody disputes are candidates for mediation Child custody disputes are frequently candidates for mediation. Because the parties will have an ongoing relationship, it is important that any process used attempts to do as little damage as possible to the future relationship. Mediation is designed to allow the parties to work on communication skills that will increase the likelihood of successful post-divorce parenting. Studies also confirm that parties are more likely to comply with agreements that they have fashioned for themselves as opposed to those that were judicially imposed. While some jurisdictions maintain court-connected mediation services for child custody cases, parties are still free to select their own mediator. This is particularly true if the mediation will involve economic issues such as the division of property or a request for spousal support. An attorney representing a party who will be involved in mediation should be prepared to assist in the selection of the mediator. Choosing the correct mediator is very important to the success of the process. Several issues should be considered when selecting a mediator. First, the attorney should inquire about the experience and training of the mediator. Mediators of child custody disputes are generally either lawyers or mental health professionals whereas mediators who will be addressing financial issues tend to be attorneys. It is also possible to have co-mediators, often one from each discipline. Regardless of the mediator’s professional background, additional mediation training is important as the skills of a mediator, while complementary to those of both mental health professionals and of lawyers, are not the same. Attorneys should also ask about professional affiliations and ongoing education or training. If the mediator is going to provide an “evaluation” of the case, it would be important to know the extent of his experience with the type of case the attorney will be presenting. Attorneys should also speak with the mediator concerning confidentiality. Even if there is a state statute or court rule protecting confidentiality in mediation, attorneys may want to consider tailoring their own confidentiality agreement in order to offer the greatest range of protection to their clients. In selecting and preparing for the mediation it is critical that the attorney representing a party understand how the mediation will be structured. Will the mediator meet with both parties at all times? Will the mediator meet with both parties initially and then conduct what can be described as “shuttle negotiations” going back and forth with offers and information? This type of caucusing may be helpful in moving the parties to a “brokered settlement” but may be less desirable if a goal is to assist the parties in establishing good communication patterns. Another important question relates to the style or orientation of the mediator. Does the mediator see his role as facilitating discussions between parties who will propose their own solutions based on personal standards or will the mediator offer an “evaluation” of the case based on the likely outcome of a court proceeding, relying on the mediator’s professional experience? The answers to these questions are critical if the attorney is going to provide the best representation to a client. The lawyer will want to know if the mediator has any conflicts of interest and also what the fee structure will be. While most mediators charge their usual professional hourly fee for mediation services, it is important to know whether a client will be charged only for the time actually spent in mediation or whether there will be additional time billed for preparation and drafting of documents. Also, counsel may want to consider how costs will be assessed if one of the parties cancels a session. Attorneys may also decide on a joint submission of documents to save the costs of duplication. If individual submissions are to be made, counsel may agree on a page limit. Another important consideration is what role the attorney will play in the mediation itself. While many parties do not have their lawyers accompany them to child custody mediation sessions, the opposite is true when the mediation is focused on economic issues. Preparing a party to attend mediation without his lawyer present is very different from that which occurs if the lawyer will also be involved in the actual process. Whenever possible, attorneys should accompany clients to mediation. After the selection of a mediator, the next step is to prepare the client for the process. As with any good consultation the attorney must discover the client’s goals and then outline possible means of achieving them. This would of course include both legal outcomes as well as practical implications of any alternatives considered. As with most other dispute resolution processes, careful and thorough preparation is key to the success of a mediation. The client should be going into the mediation with a clear understanding of what needs to be decided. If the client will be mediating a child care plan, careful review of the proposed aspects of the plan should be discussed with the client. The client should be fully informed of the matters that she will need to discuss. A good tool for facilitating such a discussion is a parenting plan. A parenting plan that is a detailed document outlining the ways in which the child will be continued to be cared for after the divorce is now required in a growing number of states. Even where a plan is not required, one can be used to set forth the terms of any custody order. Some states utilize a standard plan. In other jurisdictions, attorneys can use a model plan such as the one recently developed by the American Academy of Matrimonial Lawyers. These plans are comprehensive and provide a template for any child custody order. The client should understand the process of mediation. The attorney should explain what is likely to occur and assist the client in developing an effective negotiation strategy. Most clients are not experts at negotiation, so some preparation is needed. Clients also should be assured that they need not agree to be bound by any terms of the agreement until they have discussed the proposed agreement with the attorney. If the attorney will accompany the client to the mediation, discussion concerning the role of the attorney in that process is necessary. Many mediators like to hear from clients directly. For attorneys who are used to speaking for their clients and for clients who are used to deferring to their attorneys, this can be unsettling. The attorney needs to discuss in advance with the client what the expectations of the client, the attorney and possibly the mediator are in this regard. Additionally, the attorney must explain to the client that mediation advocacy may appear to be different than what the client might see in court or in a four-way negotiation. Mediation tends to be far less adversarial in tone and clients may sometimes feel that they are not being represented “zealously.” It is critically important to good attorney-client relations that the client understand that being a strong and effective advocate in mediation does not require an adversarial tone. Before starting mediation, understand a client’s goals If the mediation will involve financial issues, the attorney should discuss with the client and the financial expert who has either evaluated the marital estate or worked with the client on assessing the client’s future economic needs how property will be characterized, how it will be valued and the client’s wishes for the division of property. Discussions concerning tax and other legal implications underscore the desirability of having the attorney present during the session. Attorneys must do their own preparation for the mediation by making sure that they have a clear understanding of the client’s goals and sufficient information upon which to make recommendations to the client. At the mediation itself, the attorney’s skills at negotiation and persuasion are very much applicable. Mediation provides a rare opportunity to communicate directly with the other party. Attorneys should take advantage of that opportunity by appearing open-minded and reasonable and always respectful of the other party. The lawyer should listen carefully to what the other party has to say and not attempt to cross-examine him. The attorney should also ensure that his client is not subjected to a cross-examination style of questioning. At the beginning of the mediation, the attorney should express confidence in the mediation process and emphasize that she and her client are there to participate in good faith. If strong feelings are present, they should be acknowledged along with a statement of hope that an agreement will still be possible. Clients should also be prepared to speak in a constructive way, also expressing the hope that the matters at issue can be resolved. Mary Kay Kisthardt is a professor of law at the University of Missouri-Kansas City School of Law. She can be reached via e-mail at [email protected]. Barbara Handschu is a solo practitioner with offices in New York City and Buffalo, N.Y. She can be reached via e-mail at [email protected].

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