The Collaborative Family Law Process 101: A New Role for the Family Law Attorney

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The Collaborative Family Law Process 101 A New
Role for the Family Law Attorney

• By Dawn Anderson

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Introduction

• Family attorneys need to learn a new way of
  advocating for their clients as mediation becomes
  more mainstream and is more likely to be
  requested.

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Agenda

• Mediation.
• Fears and benefits.
• Styles of mediation.
• The mediator.
• The role of the family attorney in mediation.

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MEDIATION

• A process in which a mediator, an impartial
  third party, facilitates the resolution of family
  disputes by promoting the participants voluntary
  agreement. The family mediator assists
  communication, encourages understanding and
  focuses the participants on their individual and
  common interests. The family mediator works with
  the participants to explore options, make
  decisions and reach their own agreements.
• - Model Family Mediation Standards

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Fears About Mediation

• Waste of time and money.
• Same thing as settlement conference.
• Compromise means giving in.
• Lack of attorney control.
• Client wants their day in court.
• It is hard to find a good mediator.
• Attorney isnt being an advocate.
• Loose the edge if share info.
• The other side will lie or hide info.
• Shouldnt use in dom. violence cases.
• Attorneys will lose money!

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Benefits of Mediation

• Saves time and money
• Allows for win-win situation
• Allows for creativity in solutions
• Allows for healing
• Gives the client the opportunity to be heard
• Client learns how to handle conflict
• Less harmful to the family unit
• Allows for continued relationship

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Styles of Mediation

• Evaluative
• Mediator evaluates the case
• May make recommendations
• Transformative
• Reflection/Summarize
• Not agreement focused
• Facilitative
• Widely used/accepted
• 3rd party neutral

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The Role of the Family Attorney in Mediation

• Counselor
• Negotiator
• Evaluator

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The Lawyers Role As Counselor

• Gatekeeper to the process
• When to use the process
• Selects the mediator
• Setting the date
• Location
• Who will attend
• Prepare case file

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1. When to Use the Process

• Several Factors to Consider
• Is this case safe to refer?
• Continued relationship of parties?
• Will court be stressful for client?
• Does client have limited funds?
• Is time or location important to client?
• Do you have a non-traditional family?
• Is the case high-conflict?
• Is there a power imbalance among the parties?
• Would your client benefit from the privacy of
  mediation?

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2. Selects the Mediator

• Training
• Subject matter experience
• Reputation
• Style
• Client comfort level

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3. Setting the Date and Time

• Date
• Anytime
• Before, during or after case
• Time
• Traffic
• Parking
• Child care

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4. Location

• Neutral location
• Comfort level
• Unbiased perception

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5. Who Will Attend

• Lawyer?
• Not generally in court referred domestic
• Private sessions up to parties Comfort person?
• New partner?
• Comfort person?
• Child?
• Expert?

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6. Prepare the Case File

• Check facts
• Check law
• Re-check deadlines
• Summary to mediator
• Visual aids
• Learn more about the process
• Review agreement to mediate

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The Lawyer As the Negotiator

• Mediation is a form of negotiation.
• Prepare the client for mediation.
• Coach the client.
• Advice and develop options.
• Communication in the mediation.

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Prepare the Client

• Explain the process in lay terms
• Explain the mediators role
• Explain good faith and confidentiality
• Benefits and risks
• Compare to litigation

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2. Coach the Client

• Interests v Needs
• Clear goals
• Talking points
• Avoid additional harm
• Focus on issue not people

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3. Advise and Develop Options

• Brainstorm
• BATNA
• WATNA
• Expand the pie
• Legal perspective

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4. Communication in the Mediation

• How to communicate with lawyer during
• Note-taking
• Emotions
• People skills

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The Lawyer As the Evaluator

• Review agreements
• Memorialize the agreement

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Review Agreements

• Scrutinize for practicality
• Check the clients comfort zone
• Ensure fairness
• Re-negotiate any unraveled issues

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2. Memorialize the Agreement

• Draft a consent order
• Submit to the court

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Where to Get More Information

• Mediation classes at UB
• MICPEL classes
• Websites
• FLA

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Summary

• The collaborative approach used in mediation can
  be very beneficial to clients involved in a
  family matter. Attorneys who are more
  comfortable with their role in the process are
  better able to serve their clients needs. As a
  result clients will have their emotional needs
  met in a cooperative environment resulting in a
  better chance of obtaining a workable outcome.

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• Finally, family attorneys will benefit by
  increasing their job satisfaction, reducing their
  work-related stress and having happier clients.
• This is truly a win-win situation.