subject: Most Commonly Asked Questions About Mediation [print this page] QUESTION 1: QUESTION 1:
IF BOTH LAWYERS ARE SETTLEMENT MINDED, WHY SHOULD WE SPEND MONEY FOR YET ANOTHER PROFESSIONAL AND HIRE A MEDIATOR?
If the lawyers can work together and settle the case quickly, amicably, and inexpensively, perhaps mediation is not needed in that case. Quite often, their role of adversary professional causes many lawyers to respond aggressively or initiate pre-emptive strikes that the other party finds threatening. It is difficult for a lawyer to take care of a client and to play a meditative role at the same time. If lawyers do most if not all the negotiating, the parties themselves do not experience direct communication with the other party to make their own agreement -- which may also improve their future interaction down the road. Using a mediator might be like taking out an insurance policy to maintain an amicable situation between all parties and counsel. It also affords the family the benefit of a trained innovative problem solver. Finally, as Baruch, Bush and Folger ("The Promise of Mediation", 1994) and others have argued, the use of mediation can be a transformative experience that may actually improve the interaction and lives of the family members instead of just putting a settlement Band-Aid on family dysfunction.
QUESTION 2:
ISN'T MEDIATION JUST ANOTHER FORM OF ONE ATTORNEY HAVING DUAL REPRESENTATION OF TWO PARTIES WITH ALL THE LIMITATIONS THAT SUCH CONFLICT SITUATIONS BRING WITH THEM?
It is true that in preventive mediations involved in premarital agreements, adoptions and putting together a family business, the mediator's role of putting together and building harmonious relationships seems very much like dual. In representing two clients, a single lawyer must withdraw if conflicts appear irreconcilable unless there is a written waiver from all parties. Conflicts, real or apparent are generally present in virtually all dual representational situations.
As a third party neutral, the mediator represents neither party. This may be clearer in the mediator's role of dispute resolver and case manager than it is in preventive mediation. The new Standards of Conduct for Mediators promulgated by the ABA. American Arbitration Association, and Society for Professionals of Dispute Resolution encourage all parties in a mediation to consult independent counsel. In many mediations, counsel attend sessions with their clients and participate at the mediation table.
QUESTION 3:
DO I HAVE LEGAL MALPRACTICE EXPOSURE IF I SIGN OFF ON AN AGREEMENT THAT IS ACTUALLY WORKED OUT IN MEDIATION WHEN I'M NOT THERE?
There is malpractice exposure for a lawyer who gives wrong advice or recommends settlement based on inadequate information. It is also true that lawyers who are doing their job to promote settlement never have all necessary information. We cut corners all the time. If we didn't, fewer cases would settle. Transaction costs and litigated conflict can destroy a family - to say nothing of overunning the courts! The issue isn't whether corners are cut; but which ones are cut and how important are they. Successful mediation depends on adequate information being disclosed and there are numerous strategies that an attorney can take in mediation to assure adequate disclosure. Finally, clients who mediate have higher satisfaction and are more involved in their own divorces so they are less likely to sue their lawyers.
QUESTION 4:
I HAVE SPENT YEARS LEARNING THE LAW AND CRAFT OF REPRESENTING CLIENTS. I HAVE SEEN GROSS UNFAIRNESS AS A RESULT OF UNTRAINED AND INEXPERIENCED MEDIATORS, MANY OF WHOM PROBABLY HAVE NEVER READ A REPORTED DECISION. WHY SHOULD I EVER REFER ANOTHER CASE TO MEDIATION? COULD I BE SUED FOR GIVING A NEGLIGENT REFERRAL?
If the client is referred out to an unqualified mediator and there is an unjust result or process, the lawyer could be liable for professional negligence. However, a failure to disclose appropriate options to litigation could also bring on malpractice and disciplinary exposure. There is growing movement to assess and certify mediator competency and to expand mediation training programs. However, it is the lawyer's obligation to play a role in selecting the mediator and to play a proactive role during the process. Turning away clients who want mediation could mean turning down an increasingly growing source of revenue.
QUESTION 5:
WITH ALL THE ECONOMIC PRESSURES ON MY PRACTICE, WILL THE GROWTH OF MEDIATION CUT INTO MY INCOME?
Actually, representing clients in mediation and offering mediation related service products can add new clients and help the lawyer improve collections on fees earned. Most family law attorneys do not get paid for approximately 30% of the work they perform in litigated matters. Lawyers who use mediation to settle their cases collect over 90% of their fees billed.
