An Overview of
Divorce Mediation, For Family Law Paralegals
The Paralegal’s Special Role
in Assisting Divorce Lawyers in Family Law Conflict Resolution
We're convinced:
Paralegals
know the score!
The role of paralegals is such
that — more than any other participants in the litigation
process — they “enjoy” a unique relationship to clients
facing divorce and family law issues.
Being in the trenches, they hear the
day-to-day vignettes of their clients’ family and personal struggles and
closely observe and reflect on the dynamics at play in the
divorcing or divorced or separated client and couple. Often,
they have the greatest insight into what interests are
really at stake, what positions are just defenses to
their clients’ overtaxed emotions, and what approaches may
help move the case to resolution.
At the same time, paralegals have
unparalleled access to, and often, influence on, their
supervising lawyer and his or her judgments about how
sensibly to advance resolution of their clients’ cases.
All of these grant paralegals special
opportunities to position a mediation to be an efficient and
successful process.
Why? Paralegals can
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assess, early-on, mediation’s suitability,
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influence the style and approach of
mediation process to be used,
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direct the selection of an appropriate
mediator for the case,
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co-ordinate mediation’s timing, and
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timely prepare materials and aids
promoting the mediation’s success.
We'll consider each of these special
opportunities here, in discussing the whether, who,
what and when of mediation in a divorce or
family law case. Although this article is written from
the perspective of full-time Colorado professional
attorney-mediators
(practicing in the Denver metro region), we believe our observations to be
generally applicable to paralegals in other areas and states as well.
Important Mediation Questions for
Paralegals
1. WHETHER to Mediate (Mediation’s
Suitability For A Family Law or Divorce Case)?
Of course, as
Colorado professional mediators,
we seldom see divorce or family law cases that could not
materially benefit from timely mediation with a professional
who provides artful mediation skills and expertise in the
area of dispute. And, as a practical matter, many
counties in the metropolitan Denver, Colorado areas mandate
mediation prior to granting court time for a contested
hearing. In these cases, it’s clear mediation is in order,
absent timely settlement by the parties or their lawyers.
Yet, even where this inquiry is moot
because of the local procedural requirement of mediation,
review of the following types of cases (likely to benefit
from mediation) may be insightful to your preparation and
assistance as a paralegal:
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Is there an
emotional barrier to settlement? (party
or parties need psychological validation
/ acknowledgment to move forward)
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Do one or both
parties seem to have informational
deficits? (basic assumptions for the
divorce’s planning, or, gaps in detailed
discoverable data)
-
Would some artfully
shared reality testing be helpful?
(lawyers work with mediator to confirm
client expectations of litigated result
likely unrealistic; sometimes mediators
work with lawyers to reconsider their
expectations!)
-
Has a seemingly
impenetrable communication impasse
developed? (parties or lawyers’s
relationship interferes with reasonable
opportunity to explore otherwise
achievable settlement)
-
Have the parties’
resources dwindled or been exhausted?
(making a litigated resolution a no
longer affordable luxury & any expedited
approach the only feasible course), or
-
Could the case
benefit from an experienced neutral’s
vision or special expertise? (suggesting
of substantive options that meet both
parties’ interests, missed by advocates’
focus on only their clients’ position)
If the answer to any of these inquiries
is “yes,” mediation should be explored and framed by these
differing rationales.
2. WHO to Mediate With? Choosing A Family
or Divorce
Mediator
As with many other issues in life,
there is no “one size fits all” approach to
choosing a family mediator. Most family lawyers
instinctively limit their choice of mediators to an
attorney-mediator (a lawyer limiting his or her work to
mediation or devoting a portion — a daunting task, more
about this later! — of his or her practice to mediation).
Because divorce is necessarily a
creation of law, a lawyer's training
and real world practice experience (understanding how courts work and how Orders or Agreements
are commonly or best structured) is often of great benefit
to a successful divorce mediation. Mediation that includes a
consideration of
likely court outcomes with divorcing parties (sometimes
desired or desirable, sometimes not) necessarily requires
experience with how judges generally view certain legal or
non-legal issues. Non-attorney mediators may lack
credibility and persuasiveness in this task —
especially in lawyer-attended divorce or family law
mediation.
Conversely, most family lawyers do not
stay
current with the latest clinical research regarding child
development and the healthy structuring of (by way of
example) overnights in parenting plans with young children.
Many lawyers cite chapter and verse of books and resources
premised on studies
no longer considered authoritative.
Strong conflict resolution and
remarkable interpersonal skills may successfully move many,
if not most, family disputes forward. And, it is not the
case that a mediator must have high substantive expertise in
the area of the dispute, but . . . it often “can’t hurt,”
no?
So, the selection of the right mediator
for a given divorcing couple should always begin with an
assessment of the principal issues in dispute:
Sophisticated parenting
issues (e.g., crafting a developmentally healthy
timesharing structure given clients’ unique/unusual
circumstances, special child problems or parenting
strengths and deficits) will usually benefit from
selecting a mediator with a rich mental health
background. Most parents will choose mediated
resolutions consistent
with artfully shared insights into what works best for
families and children with their unique constellation of
concerns. The mental health mediator’s
special expertise with parenting issues may be
invaluable.
More complex financial
issues (e.g., spousal maintenance planning, and
business division, retirement valuation, stock options
assessment and other such matters)
enormously benefit from selecting a mediator who has a
substantial familiarity and comfort mediating
issues with intricate financial and tax planning
implications. The attorney-mediator’s
substantive knowledge of settlement options may be
invaluable.
Ultimately, experience is key,
however. An experienced family mediator with a mental health
background who possesses substantive legal, tax and
financial expertise; consults frequently with lawyer
peers; and knows how to frame and discuss spousal
support issues with a divorcing couple — may be a much
better choice than a novice attorney-mediator.
Similarly, an experienced attorney-mediator
who consults with a reliable network of parenting
consultants; becomes familiar with the literature and
research regarding childhood development and divorce; and
crafts a practiced structure to help parents consider such
issues — may be a much better choice than a novice mental
health background mediator.
Consider also the nature of a
mediator's commitment to professional dispute resolution. Attorney-mediators who exclusively limit their work to
mediation often undergo an important transformation in their
conflict resolution style and values. The full-time practice
of mediation brings a neutrality and seasoned approach
difficult for lawyers still also acting in the “part-time”
role of advocating or litigating for other clients.
3. WHAT Mediation Looks Like (A Quick Tour
Through a Typical Divorce/Family Mediation)
Divorce Mediation With Lawyers Attending
Pre-Mediation Preparation
The most effective lawyer-attended mediations begin before the day of
the mediation, with the providing in advance of confidential statements,
or at least basic financial materials, to the mediator. We
routinely review these materials and construct a theory of
likely personal interests of the parties and their legal
issues. After reflection and/or some research, we seek to
determine what additional information may be helpful and design
a strategy for the mediation to assist the parties in
discussion of options and a resolution.
Commonly “Shuttle-Style” Mediation
When lawyers attend mediation, the
mediator often briefly consults with them about
the structure of process. For the most part, lawyer attended
mediation takes place by “shuttle mediation” — with the mediator
moving between separate rooms with each party and his or her
lawyer. (Certainly, this is not always preferred. Highly
collaborative parties and their lawyers may wisely choose to
meet together in the same room with the mediator.)
There are tradeoffs in this approach:
Shuttle mediation is clearly a less efficient way to
exchange detailed information, especially in financial
mediations where both parties often ascribe different
valuations to property or different incomes in their
approach to support. We have found that often, moving
between the two rooms with a laptop computer showing
different scenarios or a a single mediator-suggested
variation, remedies some of a shuttle mediation’s inherent
inefficiency. (We use large flat-panel television video
monitors directly to communicate and discuss this disparity
of data with the parties.)
Why, then, is shuttle mediation often preferred
in family law and divorce cases,
especially by lawyers and often by mediators? Most lawyers
feel almost compelled in their role as advocates to respond
to positions advanced by the other party or their lawyers —
when sitting in the same room. Shuttle allows for some
“venting” and evaluation without initiating a challenge to, or
launching a
debate with, the other lawyer or party.
Experienced mediators also work extremely hard to
re-frame the issue creatively (and sometimes differently) in
the two rooms of a shuttle mediation. (This is not an issue
of misleading either side. Most family law disputes and
proposed approaches to settlement offer advantages and
disadvantages to both parties; the mediator attempts to use
his or her intellect and persuasive power to enable both
parties to appreciate the benefits of a settlement option or
options — from their own interests.)
Shuttle generally begins slowly, with the
mediator spending significant time in each room, summarizing
the basics of a dispute (often gleaned in large part from
his advance work with any preparatory materials shared by
lawyers), and hearing the concerns (personal and legal) of
the divorcing party. During this initial meeting, the
mediator seeks to establish “intimacy” (a connection with
the party and their lawyers that validates their concerns
and interests) with each side. Then, as an approach to
settlement may be developed, the mediator tends to move back
and forth between the parties with increasingly shorter
periods in each room.
Typical Duration
Most lawyer-attended mediations are a
half-day in length (we schedule a minimum two hours but this
is ordinarily insufficient for shuttle mediation) and many
take most of a day with a break for lunch.
Efforts to Make Binding Mediated
Agreements
Typically, when lawyer-attended
mediation ends with agreement, lawyers have a great desire
to make the mediated agreement binding. The Colorado Dispute
Resolution Act (the
Colorado law governing mediation's confidentiality and
related issues) arguably requires
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a writing and
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signature / approval of their lawyer
to make any mediated agreement
enforceable — when parties are represented. (This appears to
be required
whether lawyers attend or not.)
Because it is ordinarily impractical
for the mediator or lawyers immediately to write up all the
terms agreed upon during the mediation, some mediators use a
tool to attempt to make binding a mediated resolution
without a complete written agreement.
For example, in cases where lawyers
find this helpful, we assemble all parties and their lawyers in a
single room and typically dictate (we create a digital
recording of) our understanding of the mediated resolution
in all its particulars. We stop and determine — with all
present — if there are errors in our understanding, and once
the mediated agreement’s terms are accurately stated, we then obtain
the assent and agreement of both parties and their lawyers
on the recording.
To attempt to comply with the Colorado Dispute
Resolution Act’s requirement of a signed writing, we have
all involved sign a written acknowledgment that the terms
just dictated are conscionable, in the children’s best
interest and are agreed upon as a binding resolution. This
recording is preserved but not transcribed unless a dispute
arises when the full Separation Agreement or other partial
Stipulation is written. Many, though not all, judges may
bind parties to these terms.
Divorce Mediation With Only the Parties Attending
In approximately 80% or more of our
mediation practice, something remarkable happens: Folks
actually come to mediation - alone (yes, without their
lawyers) to
discuss and problem-solve directly with each other (and
sometimes with neutral consultants) in crafting a plan for their
divorce!
As paralegals you may never witness
such a mediation, but we hope you will carefully consider it
as a viable and often compelling option to assist your
clients to move forward their family law case.
Ordinary Process
Prior to the mediation, we provide
clients with a list of topics to consider and documents to
assemble, to help them meaningfully prepare for our work
together. (These inform the parties of financial
data required to be disclosed by Colorado divorce law.)
In parties only mediations, we meet
around a round table with both parties. Typically, we spend
more time in a first session on the rules of our mediation
process, since process is key in these mediations.
We typically next invite both parties
to share a brief history, present circumstances and divorce
concerns. We usually find helpful asking some open-ended
questions that may provide lots of insight into their
dynamics (“Understanding your view might be quite different
than your spouse, how is it that you find yourselves
separating your lives at this point?”) and relative
preparedness, emotionally or otherwise, for the mediation.
Using a Powerpoint® presentation and a
large flat-panel television video monitor or just a
flipchart, we outline the issues to be considered and
develop an agenda both parties can support for their time in
that session. We prioritize with the couple broad topics and
then consider issues one at a time.
Ordinarily, mediations without lawyers
attending commence with the mediator providing a fair amount
of education to the parties about their options. They move to the parties’
developing plans workable for their family with some
sensitivity to how certain plans likely may be perceived by
the legal overseers (their lawyers, if any, and the
reviewing judge or magistrate).
Typically, we find couples choosing to
mediate their divorce without lawyers attending meet with us
several times to resolve all issues (children issues or more
complex financial issues require another session or more).
These couples return later to review a package including a
draft
Memorandum of Understanding
(the “MOU”) which is the equivalent of
a Separation Agreement but written in user-friendly terms
(“We agree that Martha shall ...”). We don’t allow clients
to sign the MOU in our office; our view is that mediation
(at least without lawyers attending!) should not be a
pressure process, but rather mediation parties should be
able to review such tentative expressions of their agreement
with outside parties (professionals including lawyers,
accountants, divorce planners; or friends and family —
whoever they wish), before formalizing their assent. In
practice, it is extraordinarily rare that clients materially
change the draft MOU.
We typically assist the clients without
lawyers
with their
completing final
Colorado divorce forms required to accompany the MOU; for parties represented
by lawyers, their offices (typically meaning you paralegal folks!)
generally prepare these ancillary other forms.
Mediation Without Lawyers Potential
Advantages
What are the advantages of mediation
without lawyers present? Potentially, there are many, many
advantages. A number of intense emotions, including feelings
of personal loss,
shame, alienation, fear and distrust, typically accompany
divorce. Meeting together
(especially early in the process!) honors these emotions and
allows their safe expression, venting and release. Often,
folks mediating directly with each other move forward with
their lives much more quickly since these basic emotional needs can be
suppressed or exacerbated by prolonged and nasty litigation.
Of course, there are parties where the
power imbalances (obvious or subtle) present great
challenges for a positive mediation and equitable result.
Equitable in this regard may be consciously evaluated by the
parties, however, in an
other than “what would have happened in Court” analysis.
Most parties are well aware that securing that courtroom result can exact huge tolls on
parties’ emotional and financial health, their future
relationship and the well-being of their children.
4. WHEN to Mediate?
Mediation's Timing, With Only the Parties Attending
Most divorcing parties who are not in
acute transitional stress and in relatively good emotional
health (okay, it is a divorce, right?) should be encouraged
to meet as soon as possible with the mediator. Experienced
professional mediators will delay the parts of their work
requiring additional information, but the very act of a
separated couple getting together and establishing a safe
and mutual approach to their divorce almost always has long
lasting positive benefits and reduces folks’ anxiety.
If one party is still reeling from the
other party’s unilateral and sometimes concealed plan to
separate, however, it may make sense to postpone the mediation and allow therapy or the power of time to ready
both parties for the work of divorce planning.
Mediation's Timing With Lawyers Attending
Our experience is that lawyer-attended
mediations should also not be inordinately delayed.
Mediation at the last moment sometimes works because of the
pressure exerted on parties to become realistic and settle.
More often, however, positions have hardened and the
opportunity to consider other alternatives the neutral might
have envisioned is forever lost.
Nonetheless, if basic discovery has not
yet been completed, financial mediation may be premature.
Similarly, deferring a parenting dispute mediation until a
parenting expert’s report is completed may make great sense.
For most cases, the exchange of settlement proposals prior
to mediation can be useful as well.
However, mediation’s scheduling in some
cases should be expedited even prior to the completion of
discovery or the exchange of settlement proposals. This may
be particularly warranted when the parties’ emotional
conflict is escalating, lawyers experience inordinate
“personality conflict” early on (e.g., where difficulties in
communicating worsen and maintaining their professionalism
with each other is increasingly challenging), or financial
pressures dictate advancing resolution of the case. Some
lawyers also seek a mediator’s influence early when
expectations of one side seem hugely at odds with their own
understanding of likely court results or a tolerable range
of settlement.
Conclusion: Family Law Paralegals
Can Positively Shape Divorce Mediation's Impact
Given their unique professional role,
including
- their hands-on and consistent involvement with
clients,
- their early familiarity with relevant data and
issues in dispute,
- and their often detailed understanding of,
and influence on,
a particular divorce’s interpersonal dynamics
paralegals
have a unique opportunity to shape positively the course of
family litigation, through careful management of the
mediation process.
Early assessment of extra-litigation options and
particularly mediation allows paralegals to effectively
schedule and prepare appropriately for mediation, make wise
choices about the mediation process including selection of
an appropriate mediator, and smartly time its scheduling.
Family Law & Divorce Mediation Preparation
Outline & Critical Checklist
This checklist is designed for divorce lawyers and their
paralegals’ use — to be reprinted and included in your case
files.
(If
helpful, see our complete instructions to using Acrobat®’s
free software tools.)
See also our article,
Preparing for a Successful Divorce
Mediation: A Family Lawyer (and Paralegal)’s Guide, with its
“Top Ten Suggestions List” for effective preparation for family law mediation.
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