Clients come to us with issues they care about, especially when it comes to divorce, which tops the list for the most traumatic events in a lifetime. This creates a paradox for us lawyers because what clients care about doesn’t necessarily align with outcomes that occur using a traditional legal approach.
Our legal system is notorious for pitting one family member against the other. Each “side” tries to present a case to “win” based on the law and how it fits with narrowly presented facts. The good news is that most divorce cases are never tried in court. The bad news is that too many divorces are solved using shuttle mediation because negotiations failed, rather than facilitated mediation beginning early in the process and done in stages.
“But,” you say, “most of my clients reach an agreement in shuttle mediation.”
But shuttle mediation reinforces differences by putting walls between the parties. The purpose is to solve legal issues and clients rarely, if ever, have a direct dialogue — their hidden interests are never discovered. Agreements emphasize differences and are reached under time pressure and threat of going to court — a recipe for long-term failure and client dissatisfaction.
The better approach is using facilitated mediation at the beginning of the divorce process, taking place in stages and usually working with the mediator and clients in the same room, with clients having lawyers who may or may not attend sessions.
You say, “Well, my clients don’t want to mediate in the same room with their spouse. My job is to solve the legal issues and keep the emotions out of it. Both parties in the same room just does not work!”
Clients tell lawyers they don’t want to be in the same room with their spouse, especially without their lawyer. So why encourage it? Because it works. Done correctly, not only does it work, it creates more constructive outcomes, improves relationships, reduces costs and satisfies clients.
You might think, “Okay, but facilitated mediation takes me out of the process and I lose control, clients don’t know their rights and can’t negotiate.”
Lawyers are a vital and integral part of successful facilitated mediation. Lawyers are there at every step: advising clients, helping clients prepare and understand information, educating clients about the law, teaching clients strategizing and negotiation techniques, preparing and reviewing documents, and going to court. Clients may have lawyers attend some or all of the mediation sessions, either in person or by telephone; this allows clients to receive legal advice in real time.
The structure depends on the unique needs of the clients involved. Lawyers increase control by advising and guiding clients throughout the mediation process. Lawyers are guardians of legal rights, clients are guardians of their interests and mediators are guardians of the process.
“But,” you say, “I will be out of fees!”
Yes, costs to clients are usually less — in fact, a lot less. Boston Law Collaborative analyzed 199 of its recent divorce cases and found mediation to be far less expensive, with a median cost of $6,600, compared to $19,723 for a collaborative divorce, $26,830 for settlements negotiated by lawyers and $77,746 for full-scale litigation.
However, lawyers receive many advantages when clients use facilitated mediation and in the long run their fees won’t suffer. First, lawyers hear fewer complaints because clients actively participate, increasing their satisfaction tremendously; clients understand the agreements and concessions. Lawyers work hard using the traditional legal approach, but clients don’t understand what lawyers are doing, so they complain and blame the lawyer for high fees.
Second, lawyers receive fewer stressful calls from clients, spend less time in unproductive battles and more time doing work that gives their practices meaning, such as researching, advising, strategizing, negotiating and coaching. Third, the bill might be reduced, but there is less likelihood of unpaid receivables. How many writeoffs have you had in your career because a divorce case took so much time?
And remember, a satisfied client refers other clients to you and increases billable hours. These referrals probably will want to know about facilitated mediation, so the work will be more interesting and less stressful for you.
You still might ask, “How is this better than a settlement conference? We reach a lot of agreements in settlement conferences or through shuttle mediation.”
Facilitated mediation helps clients talk with each other, so that they are able to understand each other’s real needs and concerns, while balancing power differences. Putting clients into separate rooms reinforces the walls; mediating in the same room takes the walls down brick by brick. Skilled mediators keep clients focused for meaningful dialogue. Clients actually hear what the other party says; this is crucial to understanding needs and interests.
Mediators use tools to advance productive listening, so clients can understand and even embrace the other person’s needs. For example, if the wife says she values the husband’s relationship with the children and knows he needs an appropriate place to live so the children can be with him, it has little impact, unless he hears it from her; the sizzle dies if he hears it from a mediator. A husband saying he wants his wife to have enough money to live on has little impact and probably upsets her if she hears it from a third person, even if that person is a mediator. These things may seem small, but they have a huge impact on clients moving forward and being satisfied.
Better planning occurs using progressive, facilitated mediation. Clients are trying to recreate their lives, not have them torn down. This takes time and evolves. Facilitated mediation done in stages gives clients time to think, evaluate, gather information and review with their lawyers. Lawyers have time to coach clients, helping them create better options, anticipate the other person’s needs and plan for the long run, not just until the legal issues are resolved.
After all, the parties live with this agreement for the rest of their lives. A settlement conference on the courthouse steps diminishes the ability for the parties to create a long-term, sustainable agreement.
Facilitative mediation has distinct advantages over shuttle mediation or settlement conferences for most family law cases. Clients are able to reach a constructive, unique agreement to meet their long-term interests. Lawyers have the opportunity to represent clients in a manner that meets the needs of the clients as well as their own.
The fact is, clients need good lawyers and good mediators who serve them by doing what they each do best and by working together.
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