Facilitative Mediation is Better Monika Holzer Sacks

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1 Facilitative Mediation is Better Monika Holzer Sacks Using private mediation increases lawyers job satisfaction and collections. Many other commonly shared objectives that lawyers have are also met by using mediation. It helps case management by keeping conflict down. Clients are less anxious since they feel more in control and empowered. Having another professional working the case lessens the burden on the attorney and adds other ideas and techniques to resolving the issues of difficult cases. Collections are generally not a problem since client satisfaction is higher and fees are reasonable. Also the mediation process instills and rewards responsibility in clients, which spills into other areas of their lives, such as paying their obligations. Satisfied clients refer back to their lawyers. Private mediation offers win/win for attorneys and clients. If it provides so many benefits in a divorce case, why is mediation not being used on a greater scale? Impediments for lawyers include resistance to change, fear of losing business and corresponding income, fear of losing control in their cases and not understanding the process. In fact mediation became more widely used because consumers require it. As the process becomes more well known, lawyers had best be familiar with it. What is private mediation? It is sometimes called facilitative mediation to distinguish it from evaluative mediation, or what used to be covered by court rule divorce mediation. Under MCR 3.216, evaluative mediation, permits the parties to select or the judge to appoint a mediator, usually at a pretrial conference when it appears that the parties and attorneys need help in settling the case. This mediator hears the case with the parties and their attorneys present and issues a written recommendation to the attorneys and the court. If the recommendation does not trigger a settlement and the case is tried, the court may use the recommendation as a benchmark for awarding attorney fees. This process is very court centered. Whenever the judge or other court appointed personnel are involved in a case, the message to the clients is someone else will decide your case. Hence it discourages clients from taking responsibility and encourages pushing for a greater result than the client realistically believes he/she can obtain, since they assume the mediator or the court will decide somewhere in the middle, between their two positions. Effective August 1, 2000, facilitative mediation will also be included in MCR However, parties do not have to wait for court orders to begin mediation. Private mediators begin their intervention much earlier than the evaluative mediator; hopefully before the parties have become very positioned. Attorneys rarely participate in the sessions. The parties hire the mediator under private contract. They usually pay the mediator by the hour and have an agreement to share that hourly cost. Occasionally, in more difficult cases, two mediators will work together as a team.

2 Teams offer the skills of professionals from different backgrounds; therapist/attorney, attorney/accountant, or the perspectives of different genders. In some cases, clients find the mediators who refer them to attorneys who work well with mediation. In other cases, attorneys refer the clients to mediators with whom they have had good experience. Even when mediators are attorneys, they are neutrals whose job is to facilitate settlement. They do not offer legal advice. Each client is encouraged to have his/her own attorney to educate him/her on the law and assist with negotiations. In other words, mediators want educated consumers. Attorneys are their educators and legal counsel. Mediators are very good referral sources. The mediation contract requires full disclosure and confidentiality. Under its terms, the mediator may not be called to testify and settlement discussions may be not used in the event of court hearing. The process encourages people to take responsibility for the settlement negotiations. An overriding theme in mediation is that parties managed to get married, accumulate assets, often raise a family without the assistance of their lawyers and mediators. They will have to have some kind of relationship, particularly if they have children, after the divorce. As professionals, we should help them find ways to reconfigure this family and work together as former spouses, without much professional intervention, after the divorce. Mediators believe they can accomplish this task by helping clients develop productive negotiating styles and systems to resolve present and future issues. The end result, if mediation is successful, is a detailed settlement agreement that is drafted by the mediator. Each draft has been sent simultaneously to the individual clients and their respective attorneys. Their comments are encouraged. For those clients who do not confer regularly with their attorney, it allows the attorney to track the negotiations and discuss them with the client. The next step after each party has agreed upon a mediator and a contract has been signed is having the parties agree on their financial positions. Husband and wife are each required to fill out a detailed financial disclosure form. They will also be required to submit substantiating documentation. The purpose of placing financial negotiations ahead of other issues is to allow each party to assess his/her financial picture realistically and equalize their knowledge of family finances. Typically, one party has more financial information than the other does at the beginning of the case. This process equalizes the power by sharing this knowledge. Hopefully it also helps each party to differentiate between what they need from this settlement, rather than what they want. For example, she might want to drive a luxury car when the divorce is over, but might find out that she can only afford a mid-size average car. As reality dawns, parties requirements of each other and expectations of what they personally can afford becomes more realistic. Parties are also encouraged to take responsibility for helping the other party, particularly in long-term marriages where the other party may not have a realistic chance of enhancing his/her income following the divorce. For example, the parties may share a goal that to facilitate shared parenting time, both should live in a house in the same school district. They can negotiate what kind of

3 property settlement/spousal support is needed to facilitate this goal. They may determine that this is not a realistic goal, or may have to change their property division/spousal support plans to implement this. Once the financial piece is complete or nearly so, the parties can work on childrelated issues; custody, parenting time, support. Mediated settlement agreements are distinguished from lawyer-negotiated settlement agreements by the amount of detail in the agreement. Since the mediated agreement is client driven, the parties are assigned the task of coming prepared to discuss the topic issue for the next session. They own this process and this document. Clients come prepared. Mediation settlements show that much thought and discussion preceded the drafting. These parties have already dealt with the difficult issues of child decision-making and problem solving, property exchanges that provide nightmares for other clients and their attorneys, post-judgment. Clients who have mediated settlements do not call their attorneys on Christmas Eve as the attorney is attempting to depart the office with the expectation that a Christmas parenting time conflict will be resolved. How can the attorney be sure that the client negotiates a good settlement? All settlements, whether mediated privately or not, have to be agreed upon by the client. Clients know their situation the best and have to live with the result. Attorneys still have a big role in these cases to educate the client and check in periodically with the client and the mediator. Many clients will check in with their attorney between every mediation session, because the process is so thorough and they think of questions and big picture issues that they frequently miss in a pressured courthouse negotiation session. Won t I lose business to mediators, particularly if they are fellow lawyers? Clients who mediate do not necessarily use their attorneys less. They use them more appropriately. The lawyer, in these divorce cases, actually practices law by focusing on legal issues and strategy, and hears much less whining. Good mediators are very clear about their neutral role. Lawyers who have mediated a case would be in a conflict situation to accept a case from one of the clients. In practice, this would be biting the hand that feeds you. Do these cases generate lower fees? Some cases do, and some don t. These cases rarely go to trial or some kind of highly conflicted level. Individual cases do not generate huge fees. However, unless the client is exceedingly well off, attorneys are often not paid for the highly conflicted cases. Mediation works well for lawyers who prefer to be paid, regularly by clients whose cases generated low to medium range fees. This may require taking on more clients, numerically, but satisfied clients and mediators will supply a steady flow of more clients.

4 What cases should be referred to mediation? Almost all cases should be considered for mediation. If there has been repeated domestic violence or there is another indication that the parties have grossly unequal bargaining positions, then mediation should be avoided. However, even very difficult cases can mediate. If this does not necessarily save money, what are the advantages for the client? Clients feel real ownership in their agreements. Potential trouble spots have been discussed and agreed upon during the negotiation process. These cases rarely require post judgment enforcement by the courts. When the lawyer closes this case, frequently, it stays closed until there is a significant change of circumstances. The client learns new, effective ways of communicating with his/her soon-to-be former spouse. Clients like the mediator and their lawyer when the case is finalized. Lawyers like dealing with these clients when this case is finalized and do not cringe when the follow-up calls come. The smart lawyer will suggest as the first technique for resolving post-judgment issues, have you considered returning to mediation? The potential for money saving, however, is real for the client. When you compare the cost of a case that requires extensive discovery and court hearings to one that settles after voluntary disclosure and one court hearing, the attorney fee savings is significant. Whether the savings will be made up in mediator fees, will depend on the case. No lawyer can guarantee the fees will be less. However, the client can be assured that the settlement agreement will be superior because of his/her enhanced involvement, and s/he will learn to communicate effectively with his/her spouse. The resulting reduction of conflict should result in less wear and tear on their family, particularly the children. Must all potential issues be referred to mediation? No. Some clients need help in limited areas. Some feel comfortable mediating just one issue, such as parenting time. Depending on the client s comfort level, mediators will accept cases on a limited basis, though once they feel comfortable with the mediator, often these clients will move on to other issues. What documents are submitted to the court to finalize the case? In the author s practice, a Judgment of Divorce is prepared that incorporates, but does not merge the Settlement Agreement into the Judgment. Since the Settlement Agreement is frequently very detailed and contains highly personal information, such as account numbers, the agreement is submitted to the court as an exhibit, but handed back to the attorney at the end of the hearing. Only the Judgment is placed in the court file. In the event that the Settlement Agreement is needed for future enforcement, each party and each attorney will have an original in his/her file. It is often useful to submit a copy of the Settlement Agreement to the Friend of the Court to help with future enforcement issues. How do I find a qualified mediator? Qualified mediators have received at least 40 hours of training in divorce mediation from a certified Academy of Family Mediators

5 instructor. There is continuing education available for mediators. Lawyers, therapists and accountants from across Michigan have received such training. The Michigan Council for Family and Divorce Mediation (313) or (800) has a referral list of qualified people. Don t forget to check the Yellow Pages. The Mediation Training and Consultation Institute in Ann Arbor, (734) conducts regular training sessions, and may also assist lawyers in finding competent mediators. Attorneys will find that investing 40 hours in mediation training can be of great assistance in learning more effective negotiating skills in all their cases, regardless of whether the clients are mediating. Referrals from mediators will increase significantly. Having completed the training is very helpful when representing the client who is mediating with someone else. It also permits the attorney to consider offering additional services to clients. The revised court rule will encourage much greater use of facilitative mediation. Lawyers need to be aware of and use this tool. Those who are not yet trained mediators may wish to consider expanding their practices to include this service. Mediation is a highly effective settlement tool in all cases, particularly in family law, where most parties will have to continue to work together in the future. While helping clients, attorneys can significantly enhance their professional satisfaction and income. Monika Holzer Sacks is a principal in Nichols, Sacks, Slank, Sendelbach & Buiteweg, P.C. in Ann Arbor. The firm limits its practice to family law, mediation, collaborative law and arbitration. Printed with permission of Lawyers Weekly where is originally appeared on January 10, 2000.