Retraining Family Lawyers to Support Mediating Clients

• Jurisdiction: California,United States
• Citation: Vol. 38 No. 4
• Publication year: 2016
• Author: Paula M. Lawhon, CFLS
• topic: Family Law

Retraining Family Lawyers to Support Mediating Clients

Paula M. Lawhon, CFLS

Paula Lawhon, CFLS, has a full-time family law mediation and consulting practice with a team of three attorney-mediators and offices in San Francisco, San Rafael and Lafayette. The attorney-mediators at Lawhon Law & Mediation, P.C. help marrying and separating couples reach creative agreements on complex financial and parenting issues without litigation. All of our attorney-mediators serve as family law settlement masters in the San Francisco court and Ms. Lawhon, a Marin County resident, also serves as a panelist for the Marin County Superior Court's Bench Bar Settlement Conferences.

Many families are choosing consensual dispute resolution methods such as mediation to complete their divorce and custody cases. But when searching for their separate attorneys to provide advice and support in their mediated cases, settlement-oriented clients often find attorneys whose training and decades of practice are rooted in an adversarial system. Many of these attorneys do not have adequate training or experience in non-adversarial dispute resolution or collaborative methods to truly support clients in their mediated cases, resulting in difficult and even unsuccessful negotiations. This article is intended to give practical guidance to those practitioners who would like to serve as consulting attorneys in mediation to help them think about ways in which they can have a more positive impact, become part of the solution their clients are seeking by choosing to mediate, and help support a successful outcome for all involved.

This quote from Abraham Lincoln is as relevant in 2016 as it was in 1850: "Discourage litigation. Persuade your neighbors to compromise whenever you can. Point out to them how the nominal winner is often a real loser—in fees, expenses, and waste of time. As a peacemaker the lawyer has a superior opportunity of being a good man. There will still be business enough."

In other words, lawyers who choose to improve their mediation consulting skills to better support those clients who have made the choice to mediate should not worry about a negative impact on their income as a result of encouraging compromise. In fact, attorneys who are able to make the mental shift to supporting mediating clients with interest-based discussions and client-centered negotiations may find more attorneys referring consensual dispute resolution clients to them. This may help balance the litigation work that will continue to be there for those attorneys. Also, those attorneys might receive more referrals as a result of toning down a hostile or overly aggressive approach.

I have been mediating family law cases for the last eleven of my sixteen years of practice. While the last nine years have been exclusively devoted to family law mediation and separate consulting work for mediating clients, I litigated family law and civil cases for the first seven years. Having been in the role of the litigator, the mediator and the separate attorney, I understand the concerns of the practitioner in each of these three roles. However, those concerns must be balanced with the concerns, needs and desires of the clients. After all, it is the client's divorce, not ours.

What's Wrong With Litigating Family Matters?

Litigated divorces are known for the enormous drain on financial and emotional resources and the significant time it takes to reach a resolution in a contested case through court. Other negative aspects of litigated divorces include the following:

• Hostility between the parties, many of whom are parents whose children suffer more as a result of prolonged fighting;
• Hostility between opposing attorneys who don't always remember to remain professional and civil toward each other or other parties in their clients' family law cases and resulting stress to individual professionals;
• Indulgent or aggressive discovery demands designed to annoy and harass or otherwise expend opposing party resources;

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• Unilateral actions by attorneys or parties who are firmly working against the other party and/ or attorney every step of the way that undermine trust or a good faith working relationship between the divorcing couple or parents;
• Other actions that appear designed for the sole purpose of generating fees for the attorneys.

In contrast, client-centered processes such as mediation encourage the parties and their attorneys to consider themselves as part of a team working to find solutions and reach agreements. Of course, not every case is appropriate for mediation or collaborative practice, and most of us recognize that litigation is the only option in certain cases. This article is not about those cases. Instead, it is intended to highlight and help resolve the problem of clients who wish to enter into a client-centered, non-adversarial process such as mediation while their attorneys continue to strategize adversarially and fail to support their clients in their chosen method of resolving their own case.

What Exactly is the Role of the Consulting Attorney?

Many litigators could benefit from rethinking their role in cases in which the parties want to avoid court. Stepping away from aggressive court tactics or unilateral actions that are often the norm in litigated cases can help mediation clients remain in control of the process. If the litigator brings the adversarial aspects of their...