November 2013 Bar Bulletin
 
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November 2013 Bar Bulletin

Civility in Mediation:

Why 'You Should Do What I Tell You' Does Not Work

By Lisa Dufour and Sharon Friedrich

 

Family Law Matters

This is a quarterly column series regarding current and practical issues in the practice of family law.

Arriving at a family law mediation, the other attorney hands you a huge stack of papers as their mediation materials, then disappears into the other room with the mediator. The paperwork vilifies and makes wild unfounded accusations against your client and sometimes even you.

When the mediator reappears, he or she tells you and your client that the other side wants all the community property and for your client to pay all the community debt. When the mediator goes back to the other room with your proposal to split the assets and debt, you hear loud voices and thumps that sound like they are objecting and threatening to leave. What has happened to the common sense rules of civility in the mediation process?

Risk Assessment Not Accurate

"The main cause of incivility in family law mediation arises when the attorney has not prepared their client and therefore the client has unreal expectations of what can and should occur at mediation," says Cheryll Russell, a family law mediator and arbitrator. She explains that it is difficult to mediate a case when the client does not know what the mediator can and cannot do and what the law is surrounding their issues. Russell adds that attorneys need to be very candid with their clients, before and during the mediation, about the risks of trial.

It is important to provide your client with a realistic overview of the case and how it fits in to Washington's current statutes and case law. It is a disservice to your client to promise that the client will get what he or she wants. Lynn Pollock, a mediator at Bartlett, Pollock & Besk, PLLC, says: "It is critical for your client to understand that, especially in family law, there is a range of options for reaching a fair settlement and that there are few black-and-white lines."

Former Commissioner Eric Watness, now a mediator with JAMS, agrees that some attorneys have not discussed settlement with their clients, which results in a waste of precious time at mediation. Using the mediation to conduct "discovery" also extends the amount of time for the mediation and increases the costs.

Former Commissioner Harry Slusher agrees that attorneys should thoroughly prepare their clients for the mediation process by explaining the process and the range of outcomes that might happen. This sentiment was a common theme with all of the professional mediators who were interviewed for this article.

Running Interference

Watness is concerned that some family law litigants violate the confidentiality agreement of the mediation and show the materials to the children involved or discuss the issues with the children. This is not helpful in trying to reach an agreement. Violation of confidentiality, especially by talking about the issues with the children involved, inflames the situation and does not help in the mediation process. Attorneys should stress to their clients that they should not talk about the legal process with the children.

Russell theorizes that there is so much on the Internet that family law litigants often think they know what should happen in their cases. Attorneys should emphasize that each situation is different and the Internet is not an accurate source of information about legal issues. Further, laws vary greatly from state to state, but clients are usually unaware of this.

Retired King County Superior Court Judge Charles Burdell, now with JDR, believes, "the more civil the lawyer, the better the result for the client." Russell agrees: "Do not embarrass or insult the other party or lawyer. Such action will cut off communication and impede any progress in resolving the issues. Treat the other party as you want to be treated. Do not interrupt. You will each have time to talk and present your position. Continued communication is the way to reach an agreement and to think of options."

Watness adds that in his experience "counsel will write mediation letters with trial objectives and strategies in mind, but with no apparent eye toward how to settle the case." In addition, "I have had attorneys insist that I voice a particular statement even though I know it will only enflame the other side," he says. This is not helpful in resolution of the issues.

Burdell advocates the importance of giving mediation the opportunity to solve the issues because "agreements reached by parties are much more likely to hold than decisions imposed by a judge."

How To Instill Civility in Mediations

Mediator John Curry half-jokingly states that the best way to encourage civility in mediation is to "keep the parties in separate rooms." He suggests that each attorney and client read the mediation letter with the names reversed to determine how they would feel if the statements were made about them. If they would not feel good about such statements, then they should not be included in the mediation letter.

Curry also advises that the attorneys remind their clients that the reason they are at mediation is to resolve the case. The purpose is not to air feelings or open wounds. Plus, he says, "Trial opens up wounds and separates the parties further, so it is better to resolve the case in mediation to keep the parties on the same plane."

Retired Judge Paula Casey, now with JAMS, suggests, "Lawyers should model the behavior they expect from their clients: respect and straightforward negotiations." Casey advises that attorneys should help clients focus on their children and try to minimize conflict by requiring their clients to attend the mandated parenting education seminar early in the case.

"Do not exaggerate the evidence or facts," warns Russell. The rules of fair play require complete disclosure. "Obtaining temporary orders prior to mediation can also help in final settlement, so the parties are more aware of the risk involved in going to trial," she adds.

Pollock states that timely submissions to the mediator that are well organized are not only respectful, but also very helpful. She adds that both sets of mediation materials should be reviewed with the client, especially GAL reports, business evaluations or other expert reports.

Burdell recommends that the attorneys write a "polite, professional mediation letter" as well as a private letter or call the mediator ahead of time to explain any allegations that may inflame the situation, rather than include the information in the letter that is copied to the other side.

Pollock agrees that inflammatory statements in mediation materials are not effective advocacy. She also advises that if an attorney believes that the mediator needs to be aware of particular dynamics or underlying emotional issues, this information is best conveyed through a separate, confidential letter to the mediator.

Pollock acknowledges that not all mediators like confidential letters, but it is one method of providing information to the mediator. She states that advising the mediator of similar information in a private caucus also can achieve the same effect. She also reminds attorneys that sharing mediation materials with the other side is important and helps makes the mediation more productive.

Casey agrees there are times that information should be shared with the mediator and not with the other side. "Straightforward negotiations and sharing of information are the best building blocks for trust and ultimate settlement," she says.

Pollock provided a list of tips for family law attorneys on how to prepare for and participate in a civil, family law mediation including:

  • Make sure your client is emotionally ready for the mediation.
  • Timing is critical and both parties may not be at the same place in the separation process.
  • Necessary discovery should be completed prior to mediation.
  • Each side should leave some room for negotiation.
  • All written submissions should be provided prior to the mediation to the other side and the mediator.
  • Materials should not be faxed.
  • Submissions should be organized and tabbed.
  • Do not submit materials late.
  • The mediator should be informed of the attendance of third parties, including experts.
  • The mediator also should be informed of any time constraints and the attorneys should be realistic about the time needed for the mediation.
  • The attorney should not submit an outrageous proposal, nor should the attorney submit no proposal at all.
  • During the mediation, do not be reluctant to make the first offer; it is important to get the major issues on the table as soon as possible.

All of the mediators interviewed stressed that, for a civil mediation, it is imperative that the client consider the emotional costs when weighing the risks and benefits of settling through mediation instead of going to trial. There are also reasons to settle besides the financial and emotional costs of trial.

Not only is mediation required by our rules, but a civil mediation can be very helpful in assisting the client to consider his or her long-term well-being.

"This is especially true if there is a child involved, because the parties will have to deal with each other for a very long time, and the quality of that relationship has a direct impact on their children's later adjustment in life," says mediator and GAL Carol Bailey.

The short-term feelings of venting are not justified by the end result of long-term damage to the relationship and the ability to communicate for years to come about the child.

Authors Lisa DuFour (ldufour@integrativefamilylaw.com) and Sharon Friedrich (sfriedrich@integrativefamilylaw.com) are partners with Integrative Family Law (formerly known as Carol Bailey and Associates).

They focus on complex family law cases and welcome topic suggestions or requests for future columns.

 

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