May 2005
Lawyers and Mediators — Getting on the Same Page
by Patrick R. Cockrill
The problem: In my experience, family law attorneys are still resistant to the nonlawyer mediator. Conversely, many mediators find their clients are reluctant to seek advice from a lawyer. (Before we go further let me clarify a few terms.)
Evaluative mediator: a mediator who will weigh the positive and negative aspects of each party's case and urge a common ground settlement based on what the judge would probably rule. This person is usually a family law attorney or a retired judge. The process is akin to a good settlement conference.
Facilitative mediator: a facilitative mediator trusts that the parties have the ability to solve their own problems, and is not concerned with whether the party's solution fits a likely judicial scenario. This mediator's responsibility is to facilitate the communication between the parties, and to be satisfied that each party has enough information to make a fully informed decision, and enough personal ability to represent his or her own best interest vis-à-vis the other party.
Most attorneys are looking for an evaluative mediator who will help get the case settled. Most mediators who are not also attorneys do not provide evaluative mediation services, because of a recognized lack of dissolution-evaluation training and because of a preference for a facilitative approach. Most attorneys believe that if you lack dissolution-evaluation training, you should not be mediating dissolutions. Most facilitative mediators believe that it is not their job to "evaluate" the fairness of the agreement, only to ensure that the parties are fully informed and believe the agreement is fair for them.
What the mediator and the attorney both tend to miss are the differences in what each seeks to accomplish in light of their common ultimate goal of assisting the parties to be free to go their separate ways if that is the client's choice.
To illustrate: Perhaps it would be easier to get a picture of the differences in approach if we look at a simple question of spousal maintenance. Jack and Jill have a 25-year marriage. Jack finds a younger female companion. His annual salary is $90,000. Jill is now a teacher's aid after staying home until the youngest of their three children left to join the Marines. On the horizon — their son's graduation from boot camp, their daughter's wedding in six months, and their second grandchild's baptism next spring. There are also birthdays and Christmas celebrations to look forward to for many years. Jill's attorney has drafted a motion to establish temporary monthly maintenance at $3,000 fully expecting this to continue for at least eight to 10 years. Jack has offered $800 a month for six months. After a meeting with a facilitative mediator, Jill hands her lawyer the mediation agreement that sets maintenance at $1,000 per month for three years.
At this point most family law attorneys want to grab Jill and shake her until her teeth rattle. The lawyer's analysis sees the husband's gross of $7,500 a month, a client making less than $1,500 a month with little chance of any substantial increase in the client's marketability, and her leaving thousands of dollars on the table. What is wrong with the mediator?!
The mediator sees a woman who has anticipated the divorce for several years. She has a strong support system and will come into a substantial inheritance in a few years. Her primary goal is to keep the house, which she has. She had an affair four years ago that is over now, but the sense of guilt and the sense that she was at least partly responsible for "driving" Jack into the arms of another woman lingers on. Money is not important to her as long as she can get by and has the support of her family. Money is a major focus of Jack's life. Jill is concerned with placating Jack so that they will be able to attend their son's graduation, their daughter's wedding, and future family events with their children and grandchildren without undue tensions being generated. Jill knows what her attorney thinks and that her guilt, her expected inheritance, and the nature of any future encounters between Jack and her at family events are totally irrelevant to the court's determination of the level of maintenance to which she is "entitled." But they are relevant to her!
The lawyer is now composing his CYA letter, fearing the seller's remorse that Jill will likely experience a few years down the road. The mediator is less concerned, believing that Jill was fully aware of her options and as a mature adult woman, made her choices based upon what she saw as being in her overall best interest. The mediator's primary concern, if any, is that Jill's attorney will talk her out of the settlement and the parties will be fighting for the next year awaiting a bitter, contested trial.
The Lawyer's Approach
We have laws that apply to the dissolution of a marital relationship. In some jurisdictions grounds must be established; in others no grounds are required. Joint assets and debts must be divided equally or equitably depending on the jurisdiction. Separate property interests have their own rules. What is "fair" is what the judge determines or the attorneys negotiate. The rearing and support of children is to be determined according to the rules and assumptions established by statute, by judicial precedent, and by "guidelines."
As an overly simplistic synopsis, one might say that the lawyer's job is to determine the "facts" and the available "evidence" to establish the "facts" from the client and through discovery techniques; to present the "facts" in the light most favorable to the client and most unfavorable to the other party; and to convince the judge to find the facts favorable to the client and apply the law to the provable facts.
The lawyer's mind set, indeed the attorney's oath, is to advocate for the client to achieve the best result the law and the facts permit. It is the lawyer and the client with a problem to be solved versus the other party.
The Facilitative Mediator's Approach
The applicable "law" is relevant only to the extent that the draft of the parties' solution has to meet substantive and procedural legal requirements. That accommodation is in the lawyer's realm, not the mediators.
The division of assets and debts is a problem that is shared by the parties who will work together to maximize their joint and individual benefit. What is fair is what the couple jointly agree is fair, or fair enough to let them get on with their lives. The rearing and support of children is to be determined by the father and mother looking at their own family situation and determining together how they will carry out their respective roles as dad and mom while living in different houses, regardless of legal precedent or guidelines. Their concern is to decide what will be most conducive to meeting the individual needs of their individual children, and how the costs of doing so will be shared.
The mediator's job is to listen to the "facts" as each side views them; to accept the differing perceptions of the husband and wife as to what the "facts" really are; to be otherwise unconcerned about what "evidence" might or might not be available to "prove" the "facts" (except perhaps in a reality-testing situation); to be assured that each party is fully informed about the information needed to make a determination in their own best interests; and to encourage the inter-communication of the parties to the end of reaching a mutually acceptable and workable solution regardless of their individual perceptions of the historical "facts."
Different Approaches Can Make Each Profession Suspicious of the Other
What comes out of these two very different approaches, given the identical fact pattern, may look very similar, or may look very different. The attorney has to be concerned about what is admissible in court. The mediator is free to let the parties, during their deliberations, weigh many factors that would not be admissible were they in trial. That difference alone may result in substantially different end results.
Many clients are reluctant to seek legal advice because they believe that the lawyer will try to scuttle their agreement, or will convince the other party that the agreement is not fair. From the attorney's perspective, the agreement may well not be fair, as in the case of Jack and Jill. The attorney is evaluating the settlement from the context of what would happen in court. That the ultimate agreement for a particular couple is not based on economic equality, but is driven by a need to retain a working relationship with the other party — to ensure that the children do not lose a parent, to be able to attend a child's graduation or future wedding without creating a hostile environment by the mere presence of divorced parents — are all considerations that do not impact judicial decisions and hence are not relevant to the attorney's professional evaluation of the fairness of the agreement.
When a party gives up an interest in a business enterprise without having the business appraised, it is very discomforting to the adversarial attorney. When a spouse accepts the value of a pension based on the annual statement of the plan administrator without an actuarial analysis of future benefits, the attorney has to ask if the client was really aware of what is going on, let alone "fully informed" as the mediator asserts.
"Fully informed" seems to be the key to the lawyers concerned with the mediated settlement. Couple that with what the attorney evaluates as the client's "need" for an advocate, and we have a justifiable basis for questioning whether mediators should be allowed into this field at all.
On the other hand, a system where parties are moved apart, frequently told not to talk to each other and often restrained by court order from doing so; counseled on how to avoid marital property treatment of some assets and how to keep the other side from successfully acquiring negative facts about the client; encouraged to fight to maximize the client's powers with reference to the child and to minimize those of the other parent; and made to feel inadequate and powerless in the face of rules of evidence and considerations of "relevance" that have little or no meaning in the client's daily life, seems to the mediator to raise a question as to whether lawyers should be allowed into this field at all.
Different Approaches Can Come Together
Mediators need to know enough family law to be able to determine whether their clients are, in fact, "fully informed." Mediators who do not know that there is a difference between defined contribution and defined benefit retirement plans and that each is valued differently, or that a spouse will still be contingently liable for the mortgage on the house awarded to the other party, should not be mediating property-division issues. Attorneys who lack sensitivity to the impact of a divorce contest on minor children, and to the fact that the emotional divorce may not be over for many years after the decree is entered, should not be practicing family law.
But while there are in fact poor mediators and poor family attorneys, the mainstream contains very professional and well-qualified practioners in both disciplines. What is needed is for each to understand the professional orientation of the other, and to recognize that they have different goals and different tools. They are looking at the same problem, but through a different window. What is important to one may be irrelevant to the other, but they each need to understand that, and to understand why it is deemed irrelevant.
Conclusion
Finally, for the systems to serve the greater society, both mediators and attorneys need to get beyond their professional "orientation" and listen to the individual client. Both professions need to be client driven. Each should be frequently referring to the other to ensure that clients have available to them the best tools for addressing the problems they face given their individually unique history, current situation, and future prospects. Though many attorneys might disagree, it seems to me that not every client needs a lawyer. Look at the large number of pro se actions. While a few end up in post-decree litigation, most apparently do not. Conversely, not every couple can benefit from mediation. The last statistics I saw indicated that about 25 percent of cases couldn't be mediated successfully. Still, I submit that most couples will benefit from the expertise of each profession as we learn better and better ways to communicate and work together. Understanding where the other is coming from is the first step.
Family-mediator education emphasizes the importance of recognizing the areas in which clients need to consult an attorney. The clients need to know what a judge is likely to do in order to know if consulting an attorney would be worth pursuing in light of the many other considerations they are weighing.
Family law attorneys should be educated to the need to analyze their marriage dissolution cases from a broader aspect than the rules of evidence and winning the maximum economic outcome for the client. Most of us with clients struggling with serious emotional stress refer our clients to mental health counselors. We need to be aware also that for clients with young children, and clients who do not want to "fight" or cannot afford expensive discovery or expert witnesses, and who have a grasp on the real world and how to deal with his or her spouse, can usually benefit from the facilitative mediation approach to their "legal," rather than "current life," problems. We need to be more sensitive to the reality that even after the decree is entered, most dissolution clients will continue to have emotional ties to their former spouse. Couples with children particularly need to be able to communicate civilly with one another. Facilitative mediation can be an invaluable resource for these clients. It can greatly simplify the attorney's problems in handling many family law issues.
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Patrick R. Cockrill has been a WSBA member since 1965 and is a mediator in Yakima.
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