March 2000

Collaborative Mediation:
An Alternative Approach to Case Management in Family Law Cases

by Don P. Desonier and Andrew D. Kidde

The Traditional Eleventh-Hour Mediation

You've been in mediation for six hours, and everyone, including the mediator, is getting edgy. After a brief opening presentation, the mediator moved you and your client to a separate room and started shuttling back and forth. Just now, she extracted another concession from you, your client agreeing to reduce the spousal maintenance from seven to six years. The mediator kept asking how much it would cost to take the case to trial and drawing attention to weaknesses in your case, until you realized that you had to take the next step. She went to present your most recent offer to the other side, leaving you alone with your client, a soon-to-be-divorced woman in her late 40s. Right now she seems unhappy, perhaps wondering about the thousands of dollars she's spent so far on this litigation. She's complaining about how this mediation isn't addressing the real issue — how she wasted 20 years with that creep across the hall "who has never, and will never, give me the respect and recognition I deserve for being a stay-at-home mom." She tells you, "No amount of maintenance will do that for me." When you explain that these sentiments have limited legal relevance, she glares at you and states firmly that she will not concede another dime to that jerk.

Even if she were willing to make more concessions, you're not hopeful of settling, as the other side is a long way from making a reasonable offer on maintenance. With the trial scheduled 10 days away, you're anxious to be in your office preparing. If the mediator doesn't come back with some really good news, you figure it's time to cut your losses and march out.

The mediator has returned, and she tells you that the other side has agreed to your maintenance package. Finally, the big concession you've been waiting for! You turn to your client, expecting an expression of relief. With a look of defeat she says, "Fine, just write it up and let's get out of here."

Mediations such as these can be arduous, tense and frustrating tug-of-wars. Even when the case settles, clients may leave unsatisfied, feeling that the mediation did not allow them to fully participate or address the issues that were really meaningful to them. They may also resent having had to make repeated concessions, and may feel that they settled simply to cut their losses.

In the description above, the parties used what is known as an "evaluative" approach to mediation or settlement conference. Attorneys typically use this approach to the exclusion of other forms of mediation. The popularity of this model is due in part to the fact that it typically has a high settlement rate. After all, if the substantive issues are resolved and the disputants avoid trial, they should be happy. In reality, however, the parties are often not fully satisfied.

"Collaborative" mediation, frequently used by mediators but not fully embraced by the legal community, often provides a more satisfying experience for clients. Collaborative mediation typically happens over several short sessions, usually one to two hours. Most of the mediation sessions take place with both parties present, although there may be brief private meetings or caucuses. The first session should occur early in the development of the case, in order to establish a spirit of cooperation and set the stage for productive discussions. Mediators try to create an informal atmosphere where the parties can directly negotiate the issues. Consequently, attorneys can attend sessions but usually don't. If they are not present, the parties make only tentative agreements subject to attorney review.

The early use of collaborative mediation can provide an effective approach to managing family cases. The parties, with proper assistance from their counsel, can specifically define the issues they are facing, and exchange the information that is relevant to those issues. This can be a cost-effective and efficient alternative to traditional discovery. How many attorneys have silently cursed the receipt of 100 pages of interrogatories where only a quarter of the questions appeared relevant to the issues?

Collaborative mediation is also effective for negotiations on issues such as parenting plans that contain many details. Using traditional channels of negotiation, parenting plans can consume an extraordinary amount of time and energy. Communication goes from client to attorney to attorney to client. Not only does this take a lot of time, but this "telephone" approach also increases the likelihood of miscommunication. Collaborative mediation, with the emphasis on direct, real-time negotiation, is an efficient way to resolve these detailed parenting issues. Furthermore, interactive dialogue between the parents, with the guidance and facilitation of the mediator, allows for the creation of a parenting plan that is truly tailored to the needs and interests of the children.

Face-to-face mediation also offers a better process for handling the emotional issues that are often present in the process of separation. The traditional settlement conference style of mediation occurs late in the process, often well after the separation. These emotional issues have either been ignored in the legal process (because they are not legally significant) or have been handled in an overly draconian manner, such as restraining orders. Although essential in many cases, restraining orders are all too often used not because they are necessary or even best for the parties, but rather because they are the default choice in a legal system that is not well-designed for the emotional aspects of divorce.

These emotional issues may be the most important issues to the clients and their children. Collaborative mediation allows the parties to negotiate these issues as they emerge, and come up with solutions that address their needs. For example, parties can negotiate rules around contact and privacy that are specifically related to their emotional situation. This approach is significantly less damaging to post-divorce family relations than the traditional one-size-fits-all restraining orders.

Assessing whether your client and the other party are appropriate candidates for collaborative mediation is a complex task that involves weighing several factors, such as:

• Your client's ability to negotiate

• Power disparity between the parties

• Any history of abuse

• Any history of bad faith

This is not a simple checklist; one negative factor does not automatically mean the case is not suitable for this mediation process. Instead, after fully discussing these matters, lawyer and client can together determine whether a collaborative process best serves the client's needs.

Regarding your client's skills as a negotiator, consider your role as their coach. As legal counsel, you can empower your client by giving them information about their legal rights and options, and assisting them in developing a negotiation strategy. If your client is concerned that the other party is a more powerful negotiator, it is important to note that a capable mediator may be able to intervene to assist the weaker party to participate more effectively. It is the mediator's responsibility to ensure that negotiations proceed on a level playing field.

A pattern of physical or emotional abuse is probably the most important factor to consider in determining whether the parties should try collaborative mediation. If abuse was historically used to coerce your client into complying with the other party's demands, then you should advise your client not to engage in collaborative mediation. If your client feels comfortable and safe with the idea of joint sessions, however, and the mediator being considered is well-trained and experienced, then this process may still be effective.

Discuss with your client whether there is a history of bad faith, such as concealing important information, or failing to follow through on specific agreements. Inherent in the mediation process is the defining of issues and the determination of what information needs to be exchanged. In cases where a history of bad faith exists, some preliminary formal discovery may be appropriate.

Increasingly we live in a world of multiple dispute resolution options. To keep up with this changing world, family lawyers need to see themselves not as gate-keepers of the justice system, but as air traffic controllers, directing clients to the appropriate dispute resolution process.

Collaborative mediation is an option that many family law attorneys have under-utilized. There are several reasons for this. Family law attorneys may perceive collaborative mediation as new, unfamiliar territory where they have little control over the outcome. There may also be the perception that the attorneys have significantly less to do if their clients are working with collaborative mediation. These perceptions are not really accurate. If collaborative mediation is properly conducted, attorneys play several crucial roles in the process. First, as described above, attorneys should assess the clients to make sure they are good candidates for collaborative mediation. Attorneys also ensure that all the necessary information is exchanged at the appropriate stage. While the clients themselves typically do most of the negotiating, attorneys should meet with clients prior to each session to advise them on the legal aspects of the issues to be discussed, and coach them on negotiation strategy. Attorneys also review tentative agreements as they are reached. They may recommend items for the agenda, and they generally ensure that all the legal issues are addressed. Once the agreements are acceptable to both parties, the attorneys transcribe them into legal documents. If the mediation doesn't settle all the issues, the attorneys are there to move the parties into litigation on those issues.

Divorcing couples going through collaborative mediation need the assistance of family lawyers who understand the process and can play the appropriate role. There may well be increasing business in this kind of work. Further, developing this side of one's practice may be good for future business. Studies show that divorcing couples going through collaborative mediation are usually more satisfied with the process. Satisfied clients bring referrals and are good for business.

Don P. Desonier, J.D., is an attorney and mediator in private practice in Bellevue. He conducts mediations and settlement conferences, and is a Certified Mediator in Domestic Relations with the Washington Mediation Association. Don can be reached at desonier@halcyon.com.

Andrew D. Kidde, J.D., is an attorney and mediator in private practice in Seattle. He is a Certified Mediator in Domestic Relations with the Washington Mediation Association. Andrew can be reached at adk@halcyon.com.

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