Eleven Questions Most Commonly Asked About Mediation


by Forrest (Woody) Mosten

August 1998

Forrest (Woody) Mosten Most lists contain numbers of items that have a traditional context -- 7, 10, or 20. A list of twelve even has a ring to it. But eleven?

In mediation, people can customize their process and their agreements. They don't have to be controlled by a system designed for 1 size to fit all.

I tried to fit the questions into a series of ten, but eleven just seemed to work better.


QUESTION 1:

IF BOTH LAWYERS ARE SETTLEMENT MINDED, WHY SHOULD WE SPEND MONEY FOR YET ANOTHER PROFESSIONAL AND HIRE A MEDIATOR?

If the lawyers can work together and settle the case quickly, amicably, and inexpensively, perhaps mediation is not needed in that case. Quite often, their role of adversary professional causes many lawyers to respond aggressively or initiate preemptive strikes that the other party finds threatening. It is difficult for a lawyer to take care of a client and to play a mediative role at the same time. If lawyers do most if not all the negotiating, the parties themselves do not experience direct communication with the other party to make their own agreement -- which may also improve their future interaction down the road. Using a mediator might be like taking out an insurance policy to maintain an amicable situation between all parties and counsel. It also affords the family the benefit of a trained innovative problem solver. Finally, as Baruch, Bush and Folger ("The Promise of Mediation", 1994) and others have argued, the use of mediation can be a transformative experience that may actually improve the interaction and lives of the family members instead of just putting a settlement Band-Aid on family dysfunction.


QUESTION 2:

ISN'T MEDIATION JUST ANOTHER FORM OF ONE ATTORNEY HAVING DUAL REPRESENTATION OF TWO PARTIES WITH ALL THE LIMITATIONS THAT SUCH CONFLICT SITUATIONS BRING WITH THEM?

It is true that in preventive mediations involved in premarital agreements, adoptions and putting together a family business , the mediator's role of putting together and building harmonious relationships seems very much like dual. In representing two clients, a single lawyer must withdraw if conflicts appear irreconcilable unless there is a written waiver from all parties. Conflicts, real or apparent are generally present in virtually all dual representational situations.

As a third party neutral, the mediator represents neither party. This may be clearer in the mediator's role of dispute resolver and case manager than it is in preventive mediation. The new Standards of Conduct for Mediators promulgated by the ABA. American Arbitration Association, and Society for Professionals of Dispute Resolution encourage all parties in a mediation to consult independent counsel. In many mediations, counsel attend sessions with their clients and participate at the mediation table.


QUESTION 3:

DO I HAVE LEGAL MALPRACTICE EXPOSURE IF I SIGN OFF ON AN AGREEMENT THAT IS ACTUALLY WORKED OUT IN MEDIATION WHEN I'M NOT THERE?

There is malpractice exposure for a lawyer who gives wrong advice or recommends settlement based on inadequate information. It is also true that lawyers who are doing their job to promote settlement never have all necessary information. We cut corners all the time. If we didn't, fewer cases would settle. Transaction costs and litigated conflict can destroy a family - to say nothing of overunning the courts! The issue isn't whether corners are cut; but which ones are cut and how important are they. Successful mediation depends on adequate information being disclosed and there are numerous strategies that an attorney can take in mediation to assure adequate disclosure. Finally, clients who mediate have higher satisfaction and are more involved in their own divorces so they are less likely to sue their lawyers.


QUESTION 4:

I HAVE SPENT YEARS LEARNING THE LAW AND CRAFT OF REPRESENTING CLIENTS. I HAVE SEEN GROSS UNFAIRNESS AS A RESULT OF UNTRAINED AND INEXPERIENCED MEDIATORS, MANY OF WHOM PROBABLY HAVE NEVER READ A REPORTED DECISION. WHY SHOULD I EVER REFER ANOTHER CASE TO MEDIATION? COULD I BE SUED FOR GIVING A NEGLIGENT REFERRAL?

If the client is referred out to an unqualified mediator and there is an

unjust result or process, the lawyer could be liable for professional negligence. However, a failure to disclose appropriate options to litigation could also bring on malpractice and disciplinary exposure. There is growing movement to assess and certify mediator competency and to expand mediation training programs. However, it is the lawyer's obligation to play a role in selecting the mediator and to play a proactive role during the process. Turning away clients who want mediation could mean turning down an increasingly growing source of revenue.


QUESTION 5:

WITH ALL THE ECONOMIC PRESSURES ON MY PRACTICE, WILL THE GROWTH OF MEDIATION CUT INTO MY INCOME?

Actually, representing clients in mediation and offering mediation related service products can add new clients and help the lawyer improve collections on fees earned. Most family law attorneys do not get paid for approximately 30% of the work they perform in litigated matters. Lawyers who use mediation to settle their cases collect over 90% of their fees billed. (See Chapters 4 and 15-20).


QUESTION 6:

I HAVE BEEN SUCCESSFULLY NEGOTIATING SETTLEMENTS FOR MANY YEARS AND HAVE BEEN TO HUNDREDS OF SETTLEMENT CONFERENCES. CAN I START BEING A MEDIATOR AND CHARGE MY CUSTOMARYHOURLY RATE?

You can. Currently there is no state regulation of mediation and no requirement for training. However, you might find that you could enrich your mediation craft by taking some training as it is very different than traditional law school education and continuing legal education seminars. You would be required to role-play in simulated settings and participate in other active training that is a far cry from a panel of experts giving lectures. While there is certainly a demand for lawyer-mediators with substantive knowledge and law practice experience, there are other effective styles of mediation being used. Also there are significant differences in the settlement process between court mandatory settlement conferences and mediation.


QUESTION 7:

I CAN UNDERSTAND SENDING AMICABLE COUPLES TO MEDIATION. BUT IT SEEMS THAT MY ENTIRE CASE ROSTER CONSISTS OF HIGH CONFLICT CAREER CASES IN WHICH I SPEND SO MUCH TIME IN COURT THAT I SHOULD RENT A COT IN THE COURTHOUSE. HOW CAN MEDIATION HELP IN THESE DISASTERS?

Since over 90% of cases settle, the issue isn't whether it will settle, but when, how, and with what transaction costs will the settlement occur. Many jurisdictions now have mandatory mediation on both parenting and economic issues. In litigation horror stories, lawyers are often the victims because of lost stomach lining, unsatisfied clients, and unpaid receivables. A major, but less known function of mediators is to provide consensual case management that can put some structure onto such runaway chaos and still give lawyers the freedom of traditional advocacy that judicial case management can take away.


QUESTION 8:

I'VE HEARD THAT SOME MEDIATORS ARE CHARGING FEES THAT ARE EVEN HIGHER THAN MINE. THERE IS NOT ENOUGH MONEY IN THE CASE TO HIRE YET ANOTHER LAWYER. CAN MEDIATORS JUSTIFY THEIR FEES WHEN TWO COMPETENT LAWYERS ARE ALREADY WORKING TOWARD SETTLEMENT?

Some mediators may overcharge and others may not produce a process or a result that is worth the expenditure of scarce client resources. However, even with the use of a mediator and independent consulting attorneys, the cost of a mediated divorce is not higher, and may actually be far lower than a case directly negotiated between two lawyers. It is certainly lower than litigated divorces. Even co-mediated divorces do not increase fees compared to negotiated divorces and parties may have the benefits of an interdisciplinary (lawyer-psychologist or lawyer-CPA) inter gender team that can often bring settlement faster and more comprehensively than working with a sole mediator.


QUESTION 9:

I KNOW THAT MEDIATORS SHOULD NOT GIVE LEGAL ADVICE. HOW CAN PARTIES MAKE A MEANINGFUL AGREEMENT IF THEY DON'T KNOW THE LAW?

You are correct that a neutral mediator should not give advice -- that is tell the client what to do or what decisions to make. However, mediators differ in the amount of legal information that they provide. Even if a mediator does give legal information (cases, statutes, tax laws, procedure, support guideline calculations), most clients benefit from individual legal advice and negotiation coaching from an independent family lawyer.


QUESTION 10:

I HAVE HEARD THAT GOING INTO MEDIATION REQUIRES A VERY DIFFERENT OFFICE SET-UP THAN I CURRENTLY HAVE? HOW DO I SET UP A MEDIATION PRACTICE?

First, take the pressure off yourself. Many mediators do so as a part-time supplement to their law practice. Other lawyers who want to make a career switch to mediation do so over a long period of time working of their law office space. There are a number of tips to setting up a mediation friendly office that can be implemented whether you choose to mediate (full or part time), desire to become more active in representing clients in mediation or choose to offer mediation related service products in addition to full service adversarial representation. Marketing in these emerging areas requires a different emphasis and orientation which can also help your existing law practice.


QUESTION 11:

I JUST GOT MY FIRST MEDIATION CASE. WHAT DO I DO?

Assuming that you have had sufficient training and you feel comfortable holding yourself out as a mediator, take a deep breath and look forward to a stimulating and satisfying experience. Perhaps you might decide to retain a more experienced mediator supervisor with whom you can consult or join a mediation study group to get direction and professional support. You can review the current standards of competency or you might want to review some of the mediator training treatises in the bibliography. Good luck. And remember: it's probably not as frightening as your first case as a lawyer and it is the parties' mediation not yours. They will probably help you out.

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Biography




Forest (Woody) Mosten

  • In law practice since 1972 and practicing mediation since 1979. 
  • Founding partner of Jacoby and Meyers in charge of litigation.
  • Assistant Regional Director, Federal Trade Commission.
  • Law Professor and Director of Clinical Education, Mercer Law School.
  • Adjunct Faculty:  UCLA School of Law; Pepperdine School of Law ADR Program, University of Southern California School of Law, University of San Diego School of Law, Whittier School of Law
  • 1999 Peacemaker of the Year, Southern California Mediation Association.
  • Los Angeles County Bar Conflict Prevention Award.
  • President’s Award, Beverly Hills Bar Association.
  • American Bar Association Legal Access Award, Meritorious Distinction.
  • Author: Books on mediation and lawyering published by the American Bar Association: The Complete Guide to Mediation (1997) and Unbundling Legal Services (2000).
  • Other books: Operating a Profitable Mediation Practice (1998) and Mediation Career Guide (Jossey Bass, Fall 2001).
  • Mediation Trainer and  Conference Presenter: Conducts training courses from basic to advanced for professionals and organizations. Keynote presenter for National Unbundling Conference (2000), Advanced Family Law Conference, Australia (1993), Mediation Conference London England (2000) and conferences in throughout the United States
  • Present institutes and workshops world-wide on mediation skills and strategies, working with lawyers in complex matters, and developing a mediation practice.


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Website: www.mostenmediation.com

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